Patricia Nemeth and Deborah Brouwer, Employment and Labor Law, 59 Wayne L. Rev. 951
EMPLOYMENT AND LABOR LAW
Table of Contents
I. INTRODUCTION .................................................................................. 951
II. RETALIATION ................................................................................... 953
A. Public Policy Claims.................................................................. 953
B. The Whistleblowers Protection Act .......................................... 956
1. Direct Evidence.................................................................... 957
2. Protected Activity................................................................. 959
3. Adverse Employment Action ................................................ 965
4. Causation and Pretext ......................................................... 969
III. DISCRIMINATION............................................................................. 973
A. Sexual Harassment..................................................................... 973
B. Disability Discrimination........................................................... 977
IV. EMPLOYMENT AND OTHER STATUTES............................................ 983
A. Public Employment Relations Act.............................................. 983
B. Michigan Employment Security Act........................................... 995
C. Michigan Medical Marihuana Act............................................. 999
V. EMPLOYMENT CONTRACTS............................................................ 1005
VI. FAMILY AND MEDICAL LEAVE ACT ............................................. 1011
A. Certification of Leave .............................................................. 1015
B. Fraudulent FMLA Use and the Honest Belief Defense............ 1019
C. Sovereign Immunity ................................................................. 1028
D. FMLA Retaliation.................................................................... 1030
VII. CONCLUSION ............................................................................... 1032
During this Survey period,
courts weighed in on the impact of
legislative changes to the Public Employment Relations Act,
f Founding and Managing Partner, Nemeth Law, P.C. B.A., 1981, University of
Michigan; J.D., 1984, Wayne State University; L.L.M. (Labor), 1990, Wayne State
¡ Partner, Nemeth Law, P.C. B.A., 1973, University of Michigan; M.A., 1975,
University of Michigan; J.D., 1980, Wayne State University. Erin Behler, Monica
Howard, and Kellen Myers, attorneys at Nemeth Law, P.C., each provided substantial
contributions to this article.
952 THE WAYNE LAW REVIEW [Vol. 59:951
the Michigan Medical Marihuana Act
prohibits an employer from
discharging an employee for testing positive for marijuana,
employer`s directive that an employee seek psychological counseling
violates the Americans with Disabilities Act,
and the circumstances
under which bullying morphs into an actionable sexual harassment
Michigan courts were most active, however, in resolving a wide
range of issues under the Whistleblowers` Protection Act,
whether the plaintiff`s motivation in blowing the whistle is relevant to
whether failure to renew a contract is an adverse employment
action under the Act,
whether a plaintiff can create direct evidence with
deposition testimony contradicted by other record evidence,
evidence is necessary to establish causation.
The Family Medical Leave Act
(FMLA)two decades old in
2013also saw a wide range of decisions, including ones addressing the
applicable standard for FMLA retaliation claims,
how often and when
an employer may request medical certification,
an employer`s rights
when it suspects fraudulent FMLA use,
when volunteer firefighters are
and sovereign immunity.
1. Generally, the Survey period extended from June 1, 2012 to May 30, 2013,
although several noteworthy decisions subsequent to that time frame are included in this
2. See generally MICH. COMP. LAWS ANN. §§ 423.201-.217 (West 2013); Bailey v.
Callaghan, 715 F.3d 956 (6th Cir. 2013).
3. MICH. COMP. LAWS ANN. §§ 333.26421-.26430 (West 2013).
4. See generally Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012).
5. See generally 42 U.S.C.A. §§ 12112-12117 (West 2013); Kroll v. White Lake
Ambulance Auth., 691 F.3d 809 (6th Cir. 2012).
6. See generally Wasek v. Arrow Energy Servs., 682 F.3d 463 (6th Cir. 2012).
7. MICH. COMP. LAWS ANN. §§ 15.361-.369 (West 2013).
8. See generally Whitman v. City of Burton, 493 Mich. 303; 831 N.W.2d 223
9. See generally Wurtz v. Beecher Metro. Dist., 298 Mich. App. 75; 825 N.W.2d
651 (2012), appeal granted, 494 Mich. 862; 831 N.W.2d 235 (2013).
10. See generally Fuhr v. Trinity Health Corp., No. 309877, 2013 WL 1629301
(Mich. Ct. App. Apr. 16, 2013), revd, 495 Mich. 869; 837 N.W.2d 275 (2013).
11. See generally Debano-Griffin v. Lake Cnty., 493 Mich. 167; 828 N.W.2d 634
12. 29 U.S.C.A. §§ 2601-2654 (West 2013).
13. See generally Crawford v. JP Morgan Chase & Co., 531 F. App`x 622 (6th Cir.
14. See generally Kinds v. Ohio Bell Tel. Co., 724 F.3d 648 (6th Cir. 2013); Smith v.
City of Niles, 505 F. App`x 482 (6th Cir. 2012).
15. See generally Jaszczyszyn v. Advantage Health Physician Network, 504 F. App`x
440 (6th Cir. 2012); Hall v. Ohio Bell Tel. Co., 529 F. App`x 434 (6th Cir. 2013).
16. See generally Mendel v. City of Gibraltar, 727 F. 3d 565 (6th Cir. 2013).
17. Diaz v. Mich. Dep`t of Corr., 703 F.3d 956 (6th Cir. 2013).
2014] EMPLOYMENT AND LABOR LAW 953
Those who practice law in the employment arena quickly learn that
while employers often are successful in defending against claims of
discrimination or harassment, it is much more difficult for the employer
to prevail on retaliation claims. It is simple human nature to wish to
punish someone who accuses you of making a racist comment, or of
breaking the law, or of being a harasser. Additionally, it may be easier
for a jury to conclude that an employer retaliated against one of its
workers because that determination does not require the jury to decide
that the employer was racist or biased. Further, while there are only two
major statutes in Michigan addressing discriminationthe Elliott Larsen
Civil Rights Act (ELCRA)
and the Persons with Disabilities Civil
Rights Act (PWDCRA)
there are numerous avenues, by statute and
under the common law, for an aggrieved employee to argue that he
suffered retaliation for engaging in activity protected by the law. Thus, it
is not particularly surprising that retaliation claims proved to be the most
fertile area for noteworthy decisions during this Survey period.
A. Public Policy Claims
Michigan courts have recognized an exception to at-will employment
that prohibits an employer from discharging an employee for a reason
that is contrary to established public policy. In Suchodolski v. Michigan
Consolidated Gas Co.,
the Michigan Supreme Court articulated three
situations in which 'public policy¨ proscribes termination of at-will
employment: (1) 'adverse treatment of employees who act in accordance
with a statutory right or duty,¨ (2) an employee`s 'failure or refusal to
violate a law in the course of employment,¨ or (3) an 'employee`s
exercise of a right conferred by a well-established legislative
Michigan courts also have recognized that, as a general rule, 'when a
statute creates a new right or imposes a new duty having no counterpart
in the common law, the remedies provided for in the statute for its
violation are exclusive and not cumulative.¨
Public policy claims thus
declined somewhat after the enactment of specific anti-retaliation statues,
18. MICH. COMP. LAWS ANN. §§ 37.2101-.2804 (West 2013).
19. MICH. COMP. LAWS ANN. §§ 37.1101-.1607 (West 2013).
20. 412 Mich. 692; 316 N.W.2d 710 (1982).
21. Id. at 695-96.
22. See Shuttleworth v. Riverside Osteopathic Hosp., 191 Mich. App. 25, 27; 477
N.W.2d 453 (1991).
954 THE WAYNE LAW REVIEW [Vol. 59:951
such as the Whistleblowers` Protection Act (WPA),
retaliation against an employee for reporting (or being about to report) a
suspected violation of the law by his employer to a public agency,
section 301(13) oI Michigan`s Workers` Disability Compensation Act
which forbids an employer from retaliating against an
employee for seeking workers` compensation benefits. Further, the
ELCRA and the PWDCRA each prohibit retaliation for complaining
about violations of those acts.
Under Michigan law, if a plaintiII`s
claims fall within the scope of these statutes, that plaintiff may not bring
a public policy claim.
Those laws address very specific situations, however. The WPA
protects only external reports, not complaints made internally,
WDCA is limited to workers` compensation claims.
Both the ELCRA
and the PWDCRA require that the protected activity involve an alleged
violation of those civil rights laws.
An employee who believes that she
was treated adversely in a way that offends established public policy,
other than the policies inherent in these specific anti-retaliation statutes,
must clearly identify the source of that public policy.
In Berrington v. Wal-Mart Stores, Inc.,
the plaintiff was unable to
persuade the Sixth Circuit Court of Appeals that Michigan law provides
a public policy claim based on a refusal to hire an employee because he
had filed for unemployment benefits.
William Berrington had been
employed by Wal-Mart for a number of years and had frequently
requested and received leaves of absence.
One such leave was
scheduled to end on April 30, 2007, but Berrington did not return to
work or request an extension of his leave by that date.
In May 2007,
prompted by the company`s personnel department, Berrington did
request an extension
but was told in response that, under company
policy, he was being discharged for failing to return to work at the end of
23. MICH. COMP. LAWS ANN. §§ 15.361-.369 (West 2013).
24. See MICH. COMP. LAWS ANN. § 15.362.
25. MICH. COMP. LAWS ANN. § 418.301(13) (West 2013).
26. See MICH. COMP. LAWS ANN. §§ 37.2701(a), .1602(a) (2013).
27. Shuttleworth, 191 Mich. App. at 27.
28. See MICH. COMP. LAWS ANN. § 15.362.
29. See MICH. COMP. LAWS ANN. §§ 418.101-.941.
30. See MICH. COMP. LAWS ANN. §§ 37.2701(a), 418.301(13).
31. Kimmelman v. Heather Downs Mgmt. Ltd., 278 Mich. App. 569, 576-77; 753
N.W.2d 265 (2008).
32. Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604 (6th Cir. 2012).
33. See id. at 610.
34. Id. at 606.
2014] EMPLOYMENT AND LABOR LAW 955
his approved leave.
He also was told that he could reapply to the
company after ninety days.
Berrington then applied for unemployment benefits, claiming that he
had been involuntarily discharged; Wal-Mart protested his application,
arguing that Berrington had voluntarily quit by failing to return to work
at the end of his leave.
During the pendency of this dispute, and after
ninety days had passed, Berrington reapplied to Wal-Mart.
He was not
Berrington eventually sued Wal-Mart in state court, alleging that
Wal-Mart`s failure to rehire him occurred because he had filed for
unemployment benefits, which violated public policy.
Berrington contended that he had a claim under Suchodolski because he
had been retaliated against for 'exercising a right conferred by a well-
established legislative enactment¨
the Michigan Employment
Security Act (MESA).
Wal-Mart removed the action to the U.S. District Court for the
Western District of Michigan on diversity grounds and filed a motion to
dismiss in lieu of an answer.
The district court granted the motion,
concluding that no Michigan court had or would recognize Berrington`s
cause of action.
The Sixth Circuit agreed with the district court, noting that even if
MESA was viewed as a 'well-established legislative enactment¨
sufficient to support a public policy claim, there was no basis for
concluding that Michigan law recognized a cause of action for failure to
Responding to Berrington`s argument that refusing to hire
someone because the applicant had sought unemployment benefits is as
violative of public policy as discharging an employee for the same
reason, the appellate court noted that the 'common denominator in all the
recognized public policy exceptions to at-will employment is the
existence of an employment relationship.¨
A prospective employee
38. Berrington, 696 F.3d at 606-07.
40. Id. at 607.
42. Id. at 607.
43. Id. at 609 (quoting Suchodolski v. Mich. Consol. Gas Co., 412 Mich. 692, 695-
96; 316 N.W.2d 710 (1982)).
44. MICH. COMP. LAWS ANN. §§ 421.1-.75 (West 2013).
45. Berrington, 696 F.3d at 607.
46. See id.
48. Id. at 609-10.
49. Id. at 609.
956 THE WAYNE LAW REVIEW [Vol. 59:951
does have that relationship, and as the court observed, the parties had not
identified any decision from Michigan or any other jurisdiction in which
the failure to rehire had formed the basis of an actionable public policy
The Sixth Circuit declined the opportunity to be the
first court to do so, particularly given that it would be taking that step on
behalf of the Michigan Supreme Court while sitting in diversity.
Instead, the court affirmed the district court`s dismissal of Berrington`s
B. The Whistleblowers Protection Act
The WPA provides that
[a]n employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee`s
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on behalf
of the employee, reports or is about to report, verbally or in
writing, a violation or a suspected violation of a law or
regulation or rule promulgated pursuant to law of this state, a
political subdivision of this state, or the United States to a public
body, unless the employee knows that the report is false, or
because an employee is requested by a public body to participate
in an investigation, hearing, or inquiry held by that public body,
or a court action.
Absent direct evidence of retaliation,
a plaintiff alleging a WPA
violation must offer evidence in conformity with the McDonnell Douglas
The first stage of the McDonnell Douglas
analysis is the prima facie case, which requires a WPA plaintiff to show
that: (1) she 'engaged in protected activity as defined by the [WPA|¨; (2)
50. Id. at 610.
51. Berrington, 696 F.3d at 610.
53. MICH. COMP. LAWS ANN. § 15.362 (West 2013).
54. Direct evidence is evidence that, 'if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer`s actions.¨ Hazle
v. Ford Motor Co., 464 Mich. 456, 462; 628 N.W.2d 515 (2001) (quoting Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)).
55. Debano-Griffin v. Lake Cnty., 493 Mich. 167, 175-76; 828 N.W.2d 634 (2013).
See McDonnell Douglas v. Green, 411 U.S. 792 (1973), for the United States Supreme
Court`s discussion oI the burdens of production and proof applicable at the dispositive
motion stage in employment discrimination cases.
2014] EMPLOYMENT AND LABOR LAW 957
she experienced an adverse employment action; and (3) 'a causal
connection exists between the protected activity` and the adverse
Once the plaintiff presents an appropriate prima facie case, the
employer has the opportunity to offer a legitimate, non-discriminatory
reason for the adverse employment action.
To avoid summary
disposition, the plaintiff must establish that the defendant`s proffered
reason was merely a pretext for discrimination.
During the Survey period, the Michigan Supreme Court issued a
number of important decisions addressing these aspects of WPA
litigation, as did the Michigan Court of Appeals.
1. Direct Evidence
In Fuhr v. Trinity Health Corp.,
in lieu of granting leave to appeal,
the Michigan Supreme Court reversed a judgment of the court of appeals,
which in turn had reversed the trial court`s granting of summary
disposition to the defendants.
At issue was whether the plaintiff, Todd
Fuhr, provided direct evidence of retaliatory motive when Fuhr testified
at deposition that a hospital manager told him that he was being
discharged for reporting a violation of the law to the U.S. Attorney`s
Fuhr was hired in 2007 to oversee and control Trinity Health`s
surgical inventory; in that role, he oversaw a number of subordinates.
Throughout his tenure at the hospital, those subordinates complained to
Fuhr`s supervisor that Fuhr was unprofessional and played favorites.
2009, the hospital hired a 'coach¨ to help Fuhr address these
In addition, the inventory problems that Fuhr
was hired to correct continued, although Fuhr`s performance reviews
were generally positive.
56. Debano-Griffin, 493 Mich. at 175 (citing Chandler v. Dowell Schlumberger, Inc.,
456 Mich. 395, 399; 572 N.W.2d 210 (1998)).
57. See id. at 176.
59. Fuhr v. Trinity Health Corp., 495 Mich. 869; 837 N.W.2d 275 (2013).
60. Fuhr v. Trinity Health Corp., No. 309877, 2013 WL 1629301, at *6 (Mich. Ct.
App. Apr. 16, 2013), revd, 495 Mich. 869; 837 N.W.2d 275 (2013).
61. Id. at *4-5.
62. Id. at *1.
958 THE WAYNE LAW REVIEW [Vol. 59:951
In April 2010, the hospital`s chief financial officer asked another
employee if she would be interested in assuming Fuhr`s position, if it
Emails and other evidence suggested that a decision
to remove Fuhr was made by the hospital during the first week of April,
Around this same time, Fuhr learned that one of the hospital`s
vendors may have engaged in illegal overbilling, and on April 15, 2010,
he reported his suspicions to the U.S. Attorney`s office.
The next day,
he told the hospital`s 'integrity officer¨ about the suspected overbilling.
On May 10, 2010, Fuhr was discharged in a meeting with his
supervisor and Trinity Health`s vice president.
According to the vice
president, he did not provide Fuhr with any specific reason for the
This was confirmed by Fuhr himself in an email
that he sent to the integrity officer right after the termination meeting.
Fuhr sued under the WPA
and claimed at his deposition that during
the termination meeting, Trinity`s vice president told him that he was
being fired because of his call to the U.S. Attorney`s office.
the trial court granted Trinity Health`s motion for summary disposition
even though Fuhr argued that this testimony was direct evidence of
In its decision, the trial court noted that there was
substantial evidence that Trinity made the decision to discharge Fuhr
before his call to the U.S. Attorney.
The court also viewed Fuhr`s
deposition testimony skeptically, wondering why neither his
contemporaneous email to the integrity officer or the complaint he filed
contained any mention of such an incendiary admission by Trinity`s Vice
Addressing why she did not find the deposition testimony to
be dispositive, the trial judge wrote, '[R]easonable minds could not
differ regarding whether [plaintiff`s] call to the U.S. attorney was one of
the reasons for his discharge. The evidence regarding his inevitable
termination is overwhelming. But, more importantly, documentary
66. Fuhr, 2013 WL 1629301, at *1.
70. Id. at *2.
72. Fuhr, 2013 WL 1629301, at *2.
75. Id. at *2-3.
77. See id. at * 3.
2014] EMPLOYMENT AND LABOR LAW 959
evidence and his own Complaint blatantly contradict his testimony that
his 'protected activity¨ was the reason for his termination.`¨
The court of appeals, in a 2-1 decision, disagreed.
The majority saw
Fuhr`s deposition testimony as direct evidence of discrimination,
precluding summary disposition (despite noting that they were 'not
unsympathetic to the dissent`s concerns about plaintiff`s credibility¨).
The majority further concluded that the statement ascribed to the
hospital`s vice president was admissible as a statement against interest,
and the fact that it was contradicted by other evidence from the plaintiff
did not render it inadmissible.
In dissent, Judge Joel Hoekstra left no doubt as to his views of the
matter, writing, 'I conclude that plaintiff`s self-serving deposition
testimony is blatantly contradicted by the record so that no reasonable
jury could believe it.¨
In support of his conclusion, Judge Hoekstra
pointed to the U.S. Supreme Court`s decision in Scott v. Harris, in which
the Court wrote, 'When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary disposition.¨
The Michigan Supreme Court was similarly unimpressed by Fuhr`s
offer of 'direct evidence.¨ In response to Trinity Health`s application for
leave to appeal, the court reversed the court of appeals decision 'for the
reasons stated in the Court of Appeals dissenting opinion¨ and reinstated
the order granting summary disposition to the defendants.
2. Protected Activity
Without direct evidence, a WPA plaintiff must offer prima facie
evidence of retaliation, beginning with evidence that he engaged in
activity protected by the Act.
Such protected activity occurs when the
employee: (1) reports a violation or a suspected violation of the law to a
public body, (2) is about to report a violation or a suspected violation of
78. Fuhr, 2013 WL 1629301, at *3 (alteration in original).
79. See generally id.
80. Id. at *4-5.
83. Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
84. Fuhr v. Trinity Health Corp., 495 Mich. 869; 837 N.W.2d 275 (2013).
85. See Ernsting v. Ave Maria Coll., 274 Mich. App. 506, 510-11; 736 N.W.2d 574
(2007) (quoting Roulston v. Tendercare (Mich), Inc., 239 Mich. App. 270, 279; 608
N.W.2d 525 (2000)).
82. Id. at *6.
960 THE WAYNE LAW REVIEW [Vol. 59:951
the law to a public body, or (3) is asked 'by a public body to participate
in an investigation.¨
Whether actionable protected activity has occurred is frequently at
the core of WPA litigation, and this Survey period was no exception. In
Whitman v. City of Burton,
the Michigan Supreme Court rejected the
argument that an employee who acts primarily for his own personal
interests, rather than out of the public good, is not protected by the
The contention at issue in Whitman had its origins in the legislative
history of the WPA and several early cases interpreting it. In one of the
earliest of those cases, Shallal v. Catholic Social Services of Wayne
the Michigan Supreme Court observed that, in enacting the
WPA, the Michigan legislature sought to 'alleviate the inability to
combat corruption or criminally irresponsible behavior in the conduct of
government or large businesses.¨
Next, in Dolan v. Continental
the Michigan Supreme Court wrote that
the WPA arose 'largely in response to the accidental PBB-contamination
oI livestock Ieed¨ and that 'the act encourages employees to assist in law
enforcement . . . with an eye toward promoting public health and safety.
The underlying purpose oI the act is protection oI the public.¨
the WPA, according to the court in Dolan, 'the public would remain
unaware of large-scale and potentially dangerous abuses.¨
During the previous Survey period, in Whitman v. City of Burton,
the Michigan Court of Appeals applied these principles to reverse denial
of a JNOV motion in which the plaintiII claimed that his employer`s
decision not to reappoint him as police chief violated the WPA.
gravamen of the court of appeals` decision was that Whitman`s repeated
complaints to the City concerning the mayor`s refusal to pay him for
'unused sick and vacation time,¨ which Whitman claimed violated an
ordinance, occurred in furtherance of the plaintiff`s personal financial
86. Id. at 510.
87. Whitman v. City of Burton, 493 Mich. 303; 831 N.W.2d 223 (2013).
88. Id. at 305-06.
89. Shallal v. Catholic Soc. Servs., 455 Mich. 604; 566 N.W.2d 571 (1997).
90. Id. at 612 (citing Dudewicz v. Norris-Schmid, Inc., 443 Mich. 58; 503 N.W.2d
91. Dolan v. Cont`l Airlines/Cont`l Express, 454 Mich. 373; 563 N.W.2d 23 (1997).
92. Id. at 378 (citing H. Legis. Analysis, H.B. 5088, 5089 (Mich. 1981)).
93. Id. at 379.
94. Whitman v. City of Burton, 293 Mich. App. 220; 810 N.W.2d 71 (2011), revd,
493 Mich. 303; 831 N.W.2d 223 (2013). For a more detailed discussion of the decision of
the court of appeals, see Patricia Nemeth & Deborah Brouwer, Employment and Labor
Law, 2012 Ann. Survey of Mich. Law, 58 WAYNE L. REV. 675, 695-98 (2012).
95. See Whitman, 293 Mich. App. at 222.
2014] EMPLOYMENT AND LABOR LAW 961
interests and not any true public interest.
Relying on Dolan
the court of appeals wrote, 'To encourage employees to expose
corruption or criminal conduct, the WPA prohibits future employer
reprisals` when an employee reports or is about to report such
Moreover, the court wrote,
In order to effectuate the purpose of the WPA, our courts have
ruled that, when considering a retaliation claim under the act, a
critical inquiry is whether the employee acted . . . with a desire to
inform the public on matters of public concern. . . . To that end,
it is well settled that the Legislature did not intend the
Whistleblowers Act to be used as an offensive weapon by
In the court`s view, Whitman`s actions were the antithesis of acting
in the public`s interests:
Plaintiff`s claim is not actionable under the WPA because his
complaint amounted to a private dispute over [his] entitlement to
a monetary employment benefit. Moreover, plaintiff acted
entirely on his own behalf. Indeed, nowhere in the voluminous
record 'is there any indication that good faith or the interests of
society as a whole played any part in the plaintiff`s [threatened]
decision to go to the authorities.¨
Because the plaintiff`s primary motivation was his own financial
well-being, his claim was not actionable under the WPA.
Not unexpectedly, the Michigan Supreme Court disagreed.
the court held that 'nothing in the statutory
language of the WPA addresses the employee`s motivation for engaging
in protected conduct, nor does any language in the act mandate that the
96. Id. at 224-29.
97. Dolan, 454 Mich. at 373.
98. Shallal v Catholic Soc. Servs., 455 Mich. 604; 566 N.W.2d 571 (1997).
99. Whitman, 293 Mich. App. at 229-30 (quoting Shallal, 455 Mich. at 612).
100. Id. at 230 (quoting Shallal, 455 Mich. at 621-22).
101. Id. at 230-31 (quoting Wolcott v. Champion Int`l Corp., 691 F. Supp. 1052, 1063
(W.D. Mich. 1987) (internal quotation marks omitted)).
102. Id. at 231.
103. Whitman v. City of Burton, 493 Mich. 303, 306; 831 N.W.2d 223 (2013).
104. Two of the seven justices did not participate in the decision, presumably because
they had not been on the bench at the time the case was argued. Thus, the unanimous
decision was 5-0. Id. at 321.
962 THE WAYNE LAW REVIEW [Vol. 59:951
employee`s primary motivation be a desire to inform the public of
matters of public concern.¨
The court noted that the purpose of the
WPA was to remove 'barriers that may interfere with employee efforts
to report . . . violations or suspected violations, thus establishing a cause
of action for an employee who has suffered an adverse employment
action for reporting or being about to report a violation or suspected
violation of the law.¨
After reviewing the specific language of MCL
the court concluded that the statute 'does not address
an employee`s primary motivation,`¨ nor does it 'suggest or imply that
any motivation must be proved as a prerequisite for bringing a claim.¨
Further, according to the court, 'the WPA does not suggest or imply, let
alone mandate, that an employee`s protected conduct must be motivated
by a desire to inform the public on matters of public concern.`¨
court concluded that, in the absence of statutory language imposing such
a requirement, it would not judicially impose one.
Given its conclusion that the WPA itself did not require altruistic
conduct by a plaintiff seeking the protection of the Act, the Court was
forced to disavow elements of its decision in Shallal v. Catholic Social
which the lower court had relied upon in concluding that the
protected activity prong of a prima facie WPA claim demanded that
Whitman establish that he had acted primarily for the public good, rather
than out of self-interest.
The supreme court achieved this by
concluding that Shallal had never adopted such a position in the first
In Shallal, while meeting with her supervisor regarding her
failure to adequately report an instance of possible child abuse, Shallal
became angry and threatened to report the supervisor`s alleged alcohol
use and misuse of agency funds to the Michigan Department of Social
The court of appeals eventually dismissed Shallal`s WPA
suit, concluding that Shallal had not engaged in protected activity
because her threat was not a genuine 'about to report¨ claim but was
made just to save her job.
The Michigan Supreme Court disagreed as
105. Id. at 306.
106. Id. at 312.
107. Whistleblowers` Protection Act, MICH. COMP. LAWS ANN. § 15.362 (West 2013).
108. Whitman, 493 Mich. at 313.
109. Id. (quoting Shallal v. Catholic Soc. Servs., 455 Mich. 604, 621; 566 N.W.2d 571
110. Id. at 313.
111. Shallal, 455 Mich. at 610.
112. Whitman, 493 Mich. at 314.
113. Id. at 319.
114. Id. at 314-15 (citing Shallal, 455 Mich. at 607-08).
115. Id. at 315 (citing Shallal, 455 Mich. at 608-09).
2014] EMPLOYMENT AND LABOR LAW 963
to this finding, but it still affirmed dismissal of Shallal`s claim because
she was unable to establish a causal connection between her threat and
her subsequent discharge.
Accordingly, the supreme court in Whitman
v. Burton concluded that Shallal had not held 'that an employee`s
motivation is a factor in determining whether the employee was engaged
in protected activity.¨
Returning to the facts of the dispute before it, the supreme court
noted that, because of the lower court`s conclusion that Whitman had not
engaged in protected activity, it never addressed whether Whitman had
offered evidence of a causal connection between his report of an
ordinance violation and his subsequent termination sufficient to establish
a prima facie violation of the WPA.
The supreme court thus remanded
the case to the court of appeals for consideration of that issue.
Protected activity also was an issue in Hays v. Lutheran Social
Services of Michigan,
in which the court of appeals held that a home
healthcare worker who called a local narcotics enforcement agency to
report the marijuana use of one of her patients did not engage in activity
protected by the WPA.
Hays, who worked for a private social services agency providing in-
home healthcare, was told and later observed that one of her clients was
She decided to call 911 regarding this client, and
during that call asked to be connected to the Bay Area Narcotics
Enforcement Team (BAYANET).
When a representative from that
agency came on the phone, Hays asked about the consequences of
someone knowing about another`s drug use and not reporting it.
end of the conversation, she was asked if she wished to take any
She said no.
Sometime thereafter, Hays`s employer received a complaint
regarding Hays`s call to BAYANET.
When asked about the situation
by her supervisor, Hays admitted making the call.
As a result, she was
116. Id. (citing Shallal, 455 Mich. at 621).
117. Id. at 319.
118. Whitman, 493 Mich. at 320.
119. Id. at 321.
120. Hays v. Lutheran Soc. Serv., 300 Mich. App. 54; 832 N.W.2d 433 (2013), appeal
denied, 494 Mich. 869; 832 N.W.2d 242 (2013).
121. Id. at 60.
122. Id. at 57.
126. Hays, 300 Mich. App. at 57.
964 THE WAYNE LAW REVIEW [Vol. 59:951
discharged for violations of the confidentiality agreement she signed as a
condition of her employment in which she had promised not to reveal
information about her employer`s clients.
Hays sued, claiming that she had been fired in violation of the WPA
because she had reported a suspected violation of the law and because
she had been 'about to report¨ a violation.
On the defendant`s motion,
the trial court dismissed Hays`s 'about to report¨ claim but allowed the
remainder of her suit to go to trial, during which a jury found for Hays.
The defendant appealed and Hays cross-appealed.
The court of appeals reversed the judgment in favor of the plaintiff,
Relying on a dictionary definition of the word 'report¨ as
meaning 'a detailed account of an event, situation, etc. [usually] based
on observation or inquiry,`¨ the court concluded that Hays`s call to
BAYANET asking about what might happen to her if she did not report
drug use did not fall within this definition.
Hays provided no
information during the call that would have helped BAYANET
investigate any 'violation of the law¨; she did not identify the client, the
drugs the client allegedly used, where the client lived, or even her own
Based on these facts, the court viewed Hays`s call not as a
report but a call seeking information and advice.
As such, the court of
appeals found that the trial court erred in failing to grant the defendant`s
motion for summary disposition as to this claim.
On Hays`s cross-appeal, the court of appeals concluded that Hays`s
'about to report¨ claim had been properly dismissed on motion because
Hays had not carried her burden of proving her intent to report by clear
and convincing evidence.
The court did not find that the evidence
offered by Haysthat she had discussed the client`s drug use with her
supervisor and that she called BAYANET to ask about her potential
exposureestablished that she actually intended to report a violation.
That Hays told the BAYANET officer that she did not wish to take any
129. Id. at 57-58.
130. Id. at 58-62.
131. Id. at 58.
132. Hays, 300 Mich. App. at 56
133. Id. at 64.
134. Id. at 59-60 (alteration in original) (quoting RANDOM HOUSE WEBSTER`S COLLEGE
135. Id. at 60.
137. Id. at 62.
138. Hays, 300 Mich. App. at 63 (citing Chandler v. Dowell Schlumberger, Inc., 456
Mich. 395, 400; 572 N.W.2d 210 (1998)).
139. Id. at 63.
2014] EMPLOYMENT AND LABOR LAW 965
action was especially persuasive to the court of appeals regarding
whether Hays truly intended to report anything.
The court observed that Hays`s 'about to report¨ claim also was
deficient because her employer had no objective knowledge that Hays
was about to report the client`s behavior to a public agency and could not
have discharged her in retaliation for that reason.
As such, Hays`s
claims were without merit, and the judgment in her favor was
3. Adverse Employment Action
The WPA states that '|a|n employer shall not discharge, threaten, or
otherwise discriminate against an employee regarding the employee`s
compensation, terms, conditions, location, or privileges of employment¨
because the employee engages in activity protected under the Act.
Michigan courts have further expanded on this element of a prima facie
WPA claim, noting that an adverse employment action is 'an
employment decision that is materially adverse in that it is more than a
mere inconvenience or an alteration of job responsibilities.¨
During the Survey period, a divided Michigan Court of Appeals
panel concluded that the decision not to offer a new employment contract
to an employee after the end date of a previous contract was an adverse
employment action for purposes of the WPA. That case, Wurtz v.
Beecher Metropolitan District,
was appealed to the Michigan Supreme
Richard Wurtz, an attorney, was hired in 2000 as the administrator of
the Beecher Metropolitan Water District, which provides water and
sewage services to residents and businesses near Flint, Michigan.
District is overseen by five elected board members.
141. Id. at 64 (citing Roulston v. Tendercare (Mich.), Inc., 239 Mich. App. 270, 279;
608 N.W.2d 525 (2000)).
142. Id. at 64.
143. MICH. COMP. LAWS ANN. § 15.352 (West 2013).
144. Brown v. Mayor of Detroit, 271 Mich. App. 692, 706; 723 N.W.2d 464 (2006)
(quoting Heckmann v. Detroit Chief of Police, 267 Mich. App. 480, 492; 705 N.W.2d
145. Wurtz v. Beecher Metro. Dist., 298 Mich. App. 75; 825 N.W.2d 651 (2012),
reva, 495 Mich. 242 (2014).
146. Id. at 77-78.
147. Id. at 77.
966 THE WAYNE LAW REVIEW [Vol. 59:951
Wurtz`s contract was for ten years, from February 1, 2000 to
February 1, 2010, and contained no renewal clause.
During his tenure
at the District, Wurtz typically worked from 8:00 a.m. to 12:00 noon and
then worked for the remainder of each day at his private law practice.
In 2008, he was paid $79,322 plus benefits by the District.
It was undisputed that Wurtz worked the full term of his contract and
received all of the salary and benefits to which he was entitled under that
During 2008-2009, however, Wurtz raised concerns about
various actions taken by some of the District`s board members.
2008, he wrote to the Genesee County Sheriff, the Genesee County
Prosecutor, and the Mt. Morris Police Chief, claiming that three board
members had violated Michigan`s Open Meetings Act by meeting
privately with their attorney and also by meeting with their attorney and
union representatives for a negotiating session.
responded that he did not believe that the allegations warranted a
In May 2009, Wurtz wrote a memorandum to
the board protesting the cost of board members` attendance at an industry
conference in San Diego.
In August 2009, after the board members
attended the conference, Wurtz raised concerns about possible illegal
reimbursements to board members for the conference with the Genesee
County Sheriff, and a criminal investigation ensued.
During this same
period, in January 2009, Wurtz proposed a new contract with the District,
in which he would reduce his salary and benefits in return for an
extension of his contract to August 1, 2012.
That offer was rejected by
the board in March 2009 and again in November 2009.
Wurtz`s contract thus ended on January 31, 2010.
Wurtz filed suit
on January 19, 2010, claiming that the District`s refusal to renew his
contract occurred in violation of the WPA because he had reported
148. Id. at 92. The factual summary contained in this article draws on factual
recitations from both the majority and dissenting opinions.
151. Wurtz, 298 Mich. App. at 92.
152. Id. at 78-79.
155. Id. at 79-80.
156. Id. at 80-82. Eventually, criminal charges were brought against all of the board
members stemming from their conference expenses. Those charges were dismissed prior
to trial as to one board member; the other board members were found not guilty at trial.
157. Wurtz, 298 Mich. App. at 79.
158. Id. at 79-81.
159. Id. at 81.
2014] EMPLOYMENT AND LABOR LAW 967
possible wrongdoing by board members to the police.
moved for summary disposition, arguing that Wurtz had not experienced
an adverse employment action.
The trial court granted the motion.
In a 2-1 decision, the court of appeals reversed.
no Michigan case had ever addressed the question of whether contract
non-renewal was an adverse employment action under the WPA, or even
under the ELCRA, the court turned to federal court decisions issued in
Title VII suits.
According to the court, numerous federal circuit courts
of appeal have held that failure to renew a contract is an adverse
employment action, just as failure to hire is one.
Ultimately, the court
in Wurtz found these decisions persuasive, writing that '|w|ere we to
hold that nonrenewal of a contract cannot, under any circumstances,
qualify as an adverse employment action under the WPA because a
contractual employee has no expectation of further employment past the
expiration of his or her contract, we would carve an arbitrary distinction
between contractual and at-will employees (who have no expectation of
further employment from day to day).¨
The court thus concluded that the trial court had erred in granting
summary disposition to the defendant and also erred in not permitting
further discovery as requested by Wurtz.
The case was remanded to
the trial court for a determination as to what motivated the District`s
decision not to renew Wurtz`s contract.
Judge Kirsten Frank Kelly, dissenting, found the majority`s analysis
of the issue wanting in several respects. First, looking at the exact
language of the WPA, Judge Kelly concluded that the Act itself requires
an employment relationship because it states, 'An employer shall not
discharge, threaten, or otherwise discriminate against an employee
regarding the employees compensation, terms, conditions, location or
161. Id. at 82.
162. Id. at 82-83.
163. Wurtz, 298 Mich. App. at 83.
164. Id. at 77.
165. See id. at 85-86. The court noted that in Barrett v. Kirtland Community College,
the court of appeals accepted without analysis that the non-renewal of a contract could be
an adverse employment action in an ELCRA claim, because the plaintiff was nonetheless
unable to establish causation. Id. at 85 n.13 (citing Barrett, 243 Mich. App. 306; 628
N.W.2d 63 (2001)).
166. Id. at 86-87.
167. Id. at 88.
168. Id. at 84-90. The trial court held that, as a matter of law, non-renewal could not be
an adverse employment action, so additional discovery was not necessary. Id. at 89-90.
169. Wurtz, 298 Mich. App. at 90.
968 THE WAYNE LAW REVIEW [Vol. 59:951
privileges of employment.¨
Further, an employee is specifically
defined by the WPA as 'a person who performs a service for wages or
other remuneration under a contract of hire, written or oral, express or
In Judge Kelly`s view, the WPA`s protections do not apply
to pre-employment negotiations or a refusal to hire but only to current
Wurtz`s claimed adverse employment action (that he did
not receive a new contract) did not occur until after his prior contract had
ended by its own terms and not through any adverse action, at which
time Wurtz was no longer an employee but a candidate seeking
Unlike the ELCRA, which expressly covers pre-
employment wrongs, the WPA does not.
Wurtz therefore failed to
establish the adverse employment action element of his prima facie case,
and, according to the dissent, the trial court properly dismissed his claim
on that basis.
The District applied for, and was granted, leave to appeal to the
Michigan Supreme Court.
In its order, that court asked the parties to
address whether Wurtz had suffered an adverse employment action when
the District 'declined to renew or extend his employment contract,¨
perhaps implying that even if non-renewal is not an adverse action, the
District`s decision not to extend Wurtz`s contract when he requested it
(while Wurtz was still employed) might have been.
That the court may
view this dispute as involving more than a single question of law is
suggested by its request that the parties also address whether additional
discovery could have produced evidence of a genuine issue of material
fact in light of the trial court`s grant of the District`s motion prior to the
completion of discovery.
170. Id. at 95 (quoting MICH. COMP. LAWS ANN. § 15.362).
171. Id. at 96 (quoting MICH. COMP. LAWS ANN. § 15.361(a)).
173. See id. at 96-97.
174. Id. at 101. The ELCRA protects '[t]he opportunity to obtain employment . . .
without discrimination.¨ MICH. COMP. LAWS ANN. § 37.2102(1) (West 2013).
175. Wurtz, 298 Mich. App. at 104. The dissent also observed that both Wurtz and the
majority improperly characterized his alleged adverse employment action as a 'failure to
renew,¨ even though Wurtz`s contract contained no renewal provision, and the District
was not obligated to renew his contract. Id. at 100. A more appropriate view of Wurtz`s
claim, in Judge Kelly`s view, was a failure to hire claiman action not covered by the
WPA. Id. at 96.
176. Wurtz v. Beecher Metro. Dist., 494 Mich. 862; 831 N.W.2d 235 (2013).
2014] EMPLOYMENT AND LABOR LAW 969
4. Causation and Pretext
In its recent decision in Debano-Griffin v. Lake County,
Michigan Supreme Court confirmed that claims brought under the WPA
involving circumstantial rather than direct evidence are appropriate for
the McDonnell Douglas burden-shifting analysis.
In addition, the court
shed light on the evidence necessary to establish the fourth prong of that
analysis, the causal connection between the protected activity and the
adverse employment action.
In 1998, Cheryl Debano-Griffin began working for Lake County as
the director of its 911 department.
The County`s ambulance service
was funded by a specific millage approved by the voters; two
ambulances a day were provided by Life EMS under a contract with the
In 2002, Debano-Griffin informed the County board of
commissioners of her belief that Life EMS was using one of those
ambulances to transport residents of other counties in breach of its
contract with Lake County.
Two years later, in 2004, Debano-Griffin
again brought complaints to the board, protesting the transfer of funds
from the ambulance millage account to a mapping project.
of commissioners agreed to return the funds to the ambulance account.
Around the same time that it agreed to restore funds to the
ambulance account, the board of commissioners decided to eliminate
Debano-Griffin`s position by merging it with another position.
stated reason for the decision was a need to balance the County`s budget
in light of fiscal problems, even though the 911 director`s position was
fully funded at that time.
As a result of her termination, Debano-Griffin filed suit under the
WPA in January 2005, claiming that her position had been eliminated
because of her complaints to the board about the Life EMS breach of
contract and its transfer of funds from the ambulance account.
following denial of the County`s motion for summary disposition, the
179. 493 Mich. 167; 828 N.W.2d 634 (2013).
180. Id. at 171 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
181. Id. at 17576.
182. See id. at 172.
183. Id. at 173.
185. Debano-Griffin, 493 Mich. at 172-73.
186. Id. at 173.
970 THE WAYNE LAW REVIEW [Vol. 59:951
jury found for Debano-Griffin.
That verdict was overturned by the
court of appeals, however, which held that Debano-Griffin had not
engaged in protected activity because she had only a subjective belief
that the board`s activities violated the law and because she could not
identify the specific rules or laws that the board had violated in moving
funds from one account to another.
In lieu of granting Debano-Griffin`s application for leave to appeal,
the Michigan Supreme Court reversed, holding that reporting a suspected
violation of the law is protected activity under the WPA and that the
transfer of funds complained of by Debano-Griffin could violate
Michigan law, meaning that Debano-Griffin in fact had reported a
suspected violation of actual law.
The case was remanded for
consideration of other issues raised by the County in its summary
disposition motion, which the court of appeals had not reached.
On remand, the court of appeals again reversed the trial court`s
denial of summary disposition, this time holding that Debano-Griffin had
failed to establish any connection between her complaints to the board of
commissioners and her termination other than temporal proximity.
Debano-Griffin again sought leave, and the supreme court again
Focusing solely on the issue of causation, the court clarified that the
applicable framework for assessing a WPA claim at the summary
disposition stage was the McDonnell Douglas burden-shifting
Under this approach, if a plaintiff offers sufficient evidence
of a prima facie claim, the defendant may come forward with a
legitimate, non-retaliatory reason for the action taken against the
190. Id. at 173-74. Even though Debano-Griffin reported alleged violations of the law
internally to her employer rather than externally to an outside public body, her actions
nonetheless met the WPA`s requirement that a plaintiff report a violation to a political
subdivision of the state because Lake County is such a political subdivision. See Brown
v. Mayor of Detroit, 478 Mich. 589, 591; 734 N.W.2d 514 (2007).
191. Debano-Griffin v. Lake Cnty., 2009 WL 3321510, at *4 (Mich. Ct. App. Oct. 15,
2009), revd, 486 Mich. 938; 782 N.W.2d 502 (2010).
192. Debano-Griffin, 486 Mich. at 938. The court also stated that, in light of its
decision, it was 'unnecessary to address whether the reporting of a suspected violation of
suspected law constitutes protected activity.¨ Id. at 938.
194. Debano-Griffin v. Lake Cnty., No. 282921, 2011 WL 3760907 (Mich. Ct. App.
Aug. 25, 2011), revd, 493 Mich. 167; 828 N.W.2d 634 (2013).
195. Debano-Griffin, 493 Mich. at 171-72.
196. Id. at 175-76 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
2014] EMPLOYMENT AND LABOR LAW 971
The plaintiff then has the opportunity to establish that the
proffered reason was a pretext for retaliation.
Applying this approach, the court found that the lower appellate
court mistakenly concluded that Debano-Griffin had not satisfied the
causation element of her prima facie case.
The court of appeals had
viewed Debano-Griffin`s claim as resting solely on the timing of the
board of commissioners` elimination of her position following her
complaints about the transfer of funds from the ambulance account.
the supreme court`s view, however, Debano-Griffin did not rely solely
on temporal proximity but presented other evidence linking her
termination to her protected activity: that, 'during a 12-day period¨ in
which she raised multiple concerns with the board`s actions, her position
'went from fully funded to non-existent,¨ allowing the inference that the
board members intended to fund Debano-Griffin`s position until she
began complaining about their decisions.
Further, the entity that was
the target of Debano-Griffin`s complaintsthe board of
commissionersalso was the entity that decided to eliminate her
position, which strengthened the causal connection because, according to
it is reasonable to infer that the more knowledge the employer
has of the plaintiff`s protected activity, the greater the possibility
of an impermissible motivation. Similarly, it is reasonable to
conclude that the more an employer is affected by the plaintiff`s
whistleblowing activity, the stronger the causal link becomes
between the protected activity and the employer`s adverse
The court continued,
[T]hat the board remedied its prior and potentially unlawful
action lends support to plaintiff`s position that defendants,
because of plaintiff`s complaints, were forced to do something
that they would not have otherwise done and, thus, a reasonable
197. Id. at 176.
199. Id. at 177.
200. Debano-Griffin v. Lake Cnty., No 282921, 2011 WL 3760907, at *1 (Mich. Ct.
App. Aug. 25, 2011), revd, 493 Mich. 167; 828 N.W.2d 634 (2013).
201. Debano-Griffin, 493 Mich. at 177.
202. Id. at 178.
972 THE WAYNE LAW REVIEW [Vol. 59:951
inference may be drawn that the board was motivated to
eliminate plaintiff`s position because of her complaints.
Having concluded that Debano-Griffin established a rebuttable
presumption that the board of commissioners retaliated against her
because of her complaints, the court turned to the evidence offered by
Debano-Griffin to rebut the County`s stated reason for its decision, its
The County argued that Debano-Griffin could not
refute its budget-based reason because doing so would 'call into
question¨ the County`s business judgment and would also
unconstitutionally violate the separation of powers because the judiciary
would be reviewing the decisions of a legislative body.
court found neither of these contentions to be persuasive.
Under the business judgment defense, a 'plaintiff cannot simply
show that the employer`s decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
This argument was inapplicable in Debano-Griffin`s case,
in the supreme court`s view, because she did not argue that the decision
to eliminate her position was an unsound business decision or that the
crisis could have been better addressed through other measures.
Instead, Debano-Griffin contended that the claimed budgetary crisis was
not the true reason for the board`s decision.
That argument was
supported by evidence calling into doubt the existence of a financial
emergency, which the court found sufficient to allow a jury to conclude
that monetary problems were not the motivating factor in the decision to
The court also gave short shrift to the County`s separation of powers
argument, observing that the WPA had expressly waived legislative
immunity by extending its protection to public employees.
separation of powers doctrine applies only to lawful or legitimate acts by
the legislative body in question and not to those taken in violation of the
204. Id. at 179.
206. See id.
207. Debano-Griffin, 493 Mich. at 180 (quoting Hazle v. Ford Motor Co., 464 Mich.
456, 476; 628 N.W.2d 515 (2001)).
208. See id. at 180.
210. Id. at 180-81.
211. Id. at 183 (citing Anzaldua v. Band, 457 Mich. 530; 578 N.W.2d 306 (1998)).
2014] EMPLOYMENT AND LABOR LAW 973
The court therefore held that 'the question whether the board
lawfully exercised its authority when it eliminated plaintiff`s position is
subject to judicial review. To hold otherwise would essentially allow
defendants an impenetrable defense because plaintiff lacked direct
evidence of retaliation and would render futile the burden-shifting
framework of McDonnell Douglas.¨
Because Debano-Griffin offered
enough evidence to establish a prima facie case of retaliation under the
WPA as well as evidence rebutting the County`s claimed reason for her
discharge, the trial court correctly denied the County`s motion for
The court of appeals decision was reversed, and
the jury verdict for Debano-Griffin was reinstated, ending her lengthy
odyssey through Michigan`s appellate system.
A. Sexual Harassment
The question of when workplace incivility rises to the level of
actionable harassment under state and federal civil rights laws has been
confounding courts for decades, and the recent advent of bullying claims
has only further muddied those waters. During this Survey period,
however, the Sixth Circuit Court of Appeals again reinforced the concept
that, as the U.S. Supreme Court first observed in Oncale v. Sundowner
Offshore Services, Inc.,
Title VII is not 'a general civility code for the
American workplace.¨ Thus, in Wasek v. Arrow Energy Services,
court of appeals upheld the dismissal of an employee`s same sex
harassment and bullying claims because the plaintiff offered no evidence
other than his speculation that his tormentor was homosexual.
Harold Wasek was a derrick hand, working on oil rig towers for
Arrow Energy Services.
Based in Michigan, he was assigned to a four-
man crew in Pennsylvania, working alongside Paul Ottobre.
court observed, Ottobre quickly discovered that he could provoke Wasek
with crude stories of his sexual exploits, sexual comments (such as
telling Wasek that he had a 'pretty mouth¨), and by poking Wasek in the
212. Id. at 184 (citing Detroit v. Hosmer, 79 Mich. 384, 387; 44 N.W. 622 (1890)).
213. Debano-Griffin, 493 Mich. at 185.
214. Id. at 185-86.
215. Id. at 186.
216. 523 U.S. 75, 80 (1998).
217. 682 F.3d 463 (6th Cir. 2012).
218. Id. at 468.
219. Id. at 465.
974 THE WAYNE LAW REVIEW [Vol. 59:951
buttocks and touching him in a sexual manner.
Each time, Wasek
responded angrily, swearing at Ottobre and telling him to stop.
Eventually, in September 2008, Wasek grew so angry at Ottobre`s
actions that he shoved him and threatened to beat him up.
complained to his direct supervisor, who laughed and told Wasek not to
complain to headquarters.
Matters came to a head on September 11, 2008, when Wasek asked
Ottobre for the keys to the company truck so that he could get something
to eat. Ottobre refused.
Wasek called Dick Smillie, the director of
operations in Michigan, to complain about this incident and told Smillie
about the sexual harassment.
Smillie told Wasek that he should just
'kick [Ottobre`s] ass¨ but also said that he would call Ottobre, which he
At Smillie`s direction, Wasek went back to Ottobre`s room for the
keys, but Ottobre had left, taking the truck with him.
called Smillie, who told him to call the director of operations in
Pennsylvania, Bill Strong.
Wasek called Strong and described all of
the harassment he had experienced from Ottobre.
Strong told him to
stop whining and just duke it out with Ottobre.
Frustrated by these
events, Wasek abruptly returned to Michigan, leaving a note that he had
When Arrow`s human resources department called Wasek to find out
why he had abandoned his job, Wasek said that he was not quitting but
that he could no longer work with Ottobre.
Wasek also met with the
company`s regional supervisor and relayed to him all that had been
The regional supervisor told Wasek that he was not being
fired but that he could no longer work in Pennsylvania because that crew
was angry that Wasek had left them 'high and dry.¨
He also told
Wasek that what he had experienced was simply life in the oil fields, and
221. Id. at 465-66.
222. Id. at 466.
223. Wasek, 682 F.3d at 466.
229. Wasek, 682 F.3d at 466.
234. Id. at 467.
235. Wasek, 682 F.3d at 467.
2014] EMPLOYMENT AND LABOR LAW 975
if he could not handle it, he should find other work.
Still, the company
promised to find Wasek a new assignment, which it did, beginning
October 21, 2008.
Wasek did not report to that job, however, because
he had accepted a position with another company on October 12.
Wasek subsequently sued Arrow Energy, claiming that he had been
subjected to a hostile work environment because of his gender in
violation of both Title VII and the ELCRA.
He also claimed that he
was discharged in retaliation for complaining about harassment.
the company`s motion, the district court dismissed all of Wasek`s
The Sixth Circuit affirmed.
In so doing, the court first considered
Wasek`s same-sex harassment claim, noting that sexual harassment can
be actionable whether it involves members of the same or different
Regardless of which gender is involved, the focus is whether
the alleged victim has suffered an adverse action or a hostile
environment because of his or her gender.
In same-sex harassment
cases, an inference that harassment occurred because of the plaintiff`s
gender can arise from the following: '(1) credible evidence that the
harasser was homosexual,` (2) evidence that make[s] it clear that the
harasser is motivated by general hostility to the presence of [the same-
sex] in the workplace,` or (3) comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex
The Sixth Circuit noted that there was no evidence that Ottobre was
generally hostile to men in the workplace and also no evidence that he
treated men differently than women because there were no women at the
Wasek thus could only succeed on his same-sex harassment
claim by offering evidence that Ottobre`s treatment of him was the result
of Ottobre`s homosexuality.
Wasek had no evidence establishing
Ottobre`s sexual orientation, however, beyond his speculation that
236. Id. at 466.
237. Id. at 467.
239. Id. at 466-67.
240. Id. at 467.
241. Wasek, 682 F.3d at 467.
243. Id. at 472.
244. Id. at 467 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998)).
245. Id. at 467 (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 25 (1993)).
246. Id. at 467-68 (quoting Oncale, 523 U.S. at 80-81).
247. Wasek, 682 F.3d at 468.
248. Id. at 468.
976 THE WAYNE LAW REVIEW [Vol. 59:951
Ottobre was 'a little strange, possibly bisexual.¨
Because 'a single
speculative statement in a deposition cannot be the first link in the chain
of inference` that Oncale recognizes may follow from the harasser`s non-
heterosexuality,¨ the court of appeals concluded that Wasek`s Title VII
claim had been properly dismissed.
The court reached the same conclusion as to Wasek`s harassment
claim under the ELCRA, relying on the Michigan Court of Appeals`
decision in Robinson v. Ford Motor Co.
In Robinson, the male plaintiff
sued under the ELCRA for sexual harassment based on egregious
conduct he suffered at the hands of a male co-worker.
Oncale, the court of appeals remanded the case to the trial court to
determine whether the plaintiff had established that the harasser was
homosexual, acted out of hostility towards men in the workplace, or
harassed only men.
On the basis of Robinson, the Sixth Circuit
concluded that Wasek`s ELCRA claim should be analyzed in the same
manner as his Title VII claim, resulting in dismissal of the ELCRA claim
Wasek`s retaliation claim presented a thornier issue for the court of
appeals. Under both Title VII and the ELCRA, a prima facie case of
retaliation requires evidence (1) that the plaintiff engaged in activity
protected under the statute, (2) that the employer was aware of that
protected activity, (3) that '[the employer] took adverse employment
action against¨ the plaintiff, and (4) that 'there was a causal connection
between the [plaintiff`s] protected activity and the adverse employment
While it was undisputed that Wasek reported Ottobre`s
conduct to Arrow Energy, Title VII and the ELCRA only protect an
employee from retaliation for opposing conduct prohibited by those
Because Ottobre`s conduct was not actionable under either
statute, the question was whether Wasek`s complaints could still form
the basis for a retaliation claim. The court determined that Wasek was
able to establish the protected activity element of his claim because he
had a 'reasonable and good faith belief¨ that the harassment he reported
did violate Title VII.
251. Robinson v. Ford Motor Co., 277 Mich. App. 146; 744 N.W.2d 363 (2007).
252. Id. at 148-50.
253. Id. at 157-58.
254. Wasek, 682 F.3d at 468.
255. Id. at 468-69, 472 (citing Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792
(6th Cir. 2000)).
256. See id. at 469, 472.
257. Id. at 469-70.
2014] EMPLOYMENT AND LABOR LAW 977
The court next concluded, readily, that Arrow Energy was aware of
Wasek`s protected activity.
The court also found that Wasek`s ban
from working in Pennsylvania constituted an adverse employment action
sufficient to support his prima facie case, although the court did not
believe that Arrow`s two-week delay in finding a new position for
Wasek rose to that level.
Ultimately, however, Wasek`s claim foundered on causationthe
required connection between his complaints about Ottobre and Arrow`s
decision not to let Wasek return to Pennsylvania.
The court concluded
that, based on the evidence, Arrow Energy`s banning of Wasek from
Pennsylvania occurred because Wasek had walked off the job, leaving
his team 'high and dry¨ and unable to work.
The court was
unpersuaded by the only evidence offered by Wasek in support of
causationthat the Pennsylvania ban occurred close in time to Wasek`s
complaints about Ottobre.
The court therefore affirmed dismissal of
Wasek`s retaliation claims as well as his harassment claims.
As distasteful as Ottobre`s conduct towards Wasek may have been,
this decision is another reminder that not all bad behavior is illegal under
civil rights laws. As the court concluded, 'The conduct of jerks, bullies,
and persecutors is simply not actionable under Title VII unless they are
acting because of the victim`s gender.¨
B. Disability Discrimination
In Kroll v. White Lake Ambulance Authority,
the Sixth Circuit
Court of Appeals addressed an issue of first impression in the Sixth
Circuit about the meaning of 'medical examination¨ under 42 U.S.C. §
12112(d)(4)(A) of the Americans with Disabilities Act (ADA).
that provision, employers cannot 'require a medical examination¨ or
'make inquiries of an employee as to whether such employee is an
individual with a disability . . . unless such examination or inquiry is
shown to be job-related and consistent with business necessity.¨
issue in Kroll was whether the employer`s request that an employee
258. Id. at 470.
260. Wasek, 682 F.3d at 471-72.
261. Id. at 471.
262. Id. at 471-72.
263. Id. at 472.
264. Id. at 467.
265. Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012).
266. Id. at 810 (citing Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A)).
267. 42 U.S.C.A. § 12112(d)(4)(A) (West 2013).
978 THE WAYNE LAW REVIEW [Vol. 59:951
undergo psychological counseling was a medical examination for
purposes of § 12112(d)(4)(A).
That provision applies not only to
persons applying for a job but also persons already hired.
Emily Kroll was a long-time emergency medical technician (EMT)
for White Lake Ambulance Authority (WLAA), and she was generally
considered good at her position and a good employee by her direct
supervisor, Brian Binns.
After Kroll allegedly became romantically
involved with a co-worker, however, Binns and Office Manager Jean
Dresen began receiving complaints about Kroll`s conduct and well-
As a result, according to Kroll, Dresen requested that Kroll
receive psychological counseling and also asked Kroll to authorize the
release of her counseling records so that WLAA could monitor her
attendance at those counseling sessions.
Shortly thereafter, Binns was
told by one of Kroll`s co-workers that Kroll had screamed at a male
acquaintance while driving a vehicle carrying a patient in emergency
status (with lights and sirens on).
Binns told Kroll that in order to
continue her employment with WLAA, she had to get some counseling
because WLAA was concerned about her ability to safely perform her
Kroll responded that she would not seek counseling, left the
meeting, and never returned to work at WLAA.
Kroll then sued WLAA under the ADA, claiming that WLAA`s
demand that she attend counseling violated 42 U.S.C. § 12112(d)(4).
WLAA moved for summary judgment, which was granted.
court concluded that 'counseling alone does not constitute a medical
examination under the ADA,¨ and, therefore, 'WLAA`s requirement that
Kroll attend counseling as a condition of continued employment was not
governed by 42 U.S.C. § 12112(d)(4).¨
268. Kroll, 691 F.3d at 814.
269. See 42 U.S.C.A. § 12112.
270. Kroll, 691 F.3d at 810-11.
271. Id. at 811.
273. Id. at 811-12.
274. Id. at 812. Whether Binns used the term 'psychological¨ in describing the
counseling that he asked Kroll to attend was a disputed fact. Binns did testify that it
would be fair to describe his request to Kroll as a request for her to see a psychologist to
discuss issues related to her mental health. Id.
275. Kroll, 691 F.3d at 812.
276. Id. at 812-13. Kroll also asserted retaliation and sex discrimination claims. Id.
Kroll did not oppose WLAA`s summary judgment motion as to her sex discrimination
claim and also did not present arguments in opposition to summary judgment on her
retaliation claim. Id.
2014] EMPLOYMENT AND LABOR LAW 979
The Sixth Circuit Court of Appeals first addressed, briefly, a
standing issue raised by WLAA for the first time on appeal.
argued that because Kroll never actually underwent any counseling, she
could not demonstrate an injury as required for standing to sue.
order to have standing, a plaintiff must plead a 'concrete, particularized,
and imminent injury in fact caused by the defendant that a favorable
judicial outcome would likely remedy.¨
According to the court,
whether a violation of 42 U.S.C. § 12112(d) in and of itself creates a
cognizable harm for standing purposes did not have to be answered
because it was sufficient that Kroll alleged an injurythe loss of her
job'proximately caused by the violation of 42 U.S.C. § 12112(d).¨
The court thus had the capacity to remedy the harm, so the jurisdictional
standing requirement was met.
The court then turned to the primary question on appealwhether
the counseling that WLAA directed Kroll to attend was a 'medical
examination¨ under § 12112(d)(4)(A).
This provision of the ADA
prohibits employers from requiring a medical examination unless the
examination or inquiry is job-related and consistent with business
Accordingly, employees can only be ordered to obtain a
medical examination in certain circumstances.
The court noted that the ADA offers scant 'insight into the intended
meaning or scope of the term medical examination` under §
12112(d)(4),¨ and it turned to the EEOC`s Enforcement Guidance as an
Under the EEOC`s Enforcement Guidance, a 'medical
examination¨ is a 'procedure or test that seeks information about an
individual`s physical or mental impairments or health.¨
includes a seven-factor test to determine whether a test or procedure is a
279. Kroll, 691 F.3d at 812-13.
280. Id. at 813-14.
281. Id. at 813.
282. Id. (citing Smith v. Jefferson Cnty. Bd. of Sch. Comm`rs, 641 F.3d 197, 206 (6th
283. Id. at 814.
285. Kroll, 691 F.3d at 814-20.
286. Id. at 815 (citing EEOC v. Prevo`s Family Mkt., Inc., 135 F.3d 1089, 1094 (6th
287. See id.
288. THE U.S. EQUAL EMP`T OPPORTUNITY COMM`N, EEOC NOTICE NO. 915.002,
ENFORCEMENT GUIDANCE: DISABILITY-RELATED INQUIRIES & MEDICAL EXAMINATIONS OF
EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) (2000), available at
http://www.eeoc.gov/policy/docs/guidanceinquiries.html [hereinafter EEOCNOTICE].
289. Kroll, 691 F.3d at 816 (citing EEOCNOTICE, supra note 288, at 5-6).
980 THE WAYNE LAW REVIEW [Vol. 59:951
1) Whether the test is administered by a health care professional;
2) Whether the test is interpreted by a health care professional;
3) Whether the test is designed to reveal an impairment or
physical or mental health;
4) Whether the test is invasive;
5) Whether the test measures an employee`s performance of a
task or measures his/her physiological responses to performing
6) Whether the test normally is given in a medical setting; and,
7) Whether medical equipment is used.
In applying these factors, the court initially noted that according to
the guidance document, a single factor may be sufficient to determine
that a test or procedure is a medical examination.
Further, in deciding
whether a test is a medical examination, one must consider the likelihood
that the test or procedure would 'elicit information about a disability,
providing a basis for discriminatory treatment.¨
The court also
emphasized that the 'examples provided by the EEOC suggest that an
employer`s intent is not dispositive¨ of the issue.
Thus, an employer`s
intentions, even if neutral with regard to disability, do not prevent a test
or procedure from being considered a medical examination under §
The court of appeals also reviewed the Seventh Circuit`s decision in
Karraker v. Rent-A-Center, Inc.,
as the most analogous authority on
In Karraker, the Seventh Circuit held that an evaluation
administered to employees seeking a promotion, which included a
personality inventory, was a medical examination under the ADA.
The personality inventory in Karraker was designed, at least in part, 'to
reveal mental illness and has the effect of hurting the employment
290. Id. (citing EEOCNOTICE, supra note 288, at 5-6).
293. Id. at 816.
295. Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005).
296. Kroll, 691 F.3d at 817.
297. Id. (citing Karraker, 411 F.3d at 837).
2014] EMPLOYMENT AND LABOR LAW 981
prospects of one with a mental disability.¨
The Kroll court observed
that the Seventh Circuit had reached this decision despite the fact that
'the employer claimed to be administering the MMPI solely for the
purpose of measuring personality traits, that the test was not being scored
by a psychologist, and that the employer was only using a vocational
Within this interpretive and precedential framework, the court of
appeals analyzed Kroll`s claims. Several key facts were integral to the
court`s analysis, including that Kroll had been instructed to attend some
form of counseling (although the exact type was disputed) and that Kroll
alleged that WLAA required her to 'receive psychological counseling¨
and 'to see a mental health counselor as a condition to keeping her
Because the matter involved appeal of a motion to
dismiss, the court was required to construe all facts in favor of Kroll, so
it assumed that WLAA had required that Kroll receive 'psychological
The court then reviewed medical and lay definitions of the phrase
Because no clear or precise meaning was
apparent from these differing definitions, the court applied the evidence
presented by Kroll under the seven factor test outlined in the EEOC`s
According to the court, factors one and two
'administration and interpretation by a health care proIessional¨both
weighed in favor of a finding that the psychological counseling that Kroll
was required to attend could be a medical examination under the ADA.
Specifically, Kroll alleged that WLAA told her to attend counseling
administered by a psychologist, and regardless of the role of the
psychologist (test-oriented, diagnostic, facilitative, etc.), that
psychologist, at minimum, would have engaged in some interpretation of
information received from or about Kroll.
Accordingly, the court
concluded that a reasonable jury could find the required psychological
counseling constituted a medical examination for purposes of §
The court next examined factor three'whether the psychological
counseling` was designed to reveal a mental-health impairment¨which
298. Id. at 817.
299. Id. at 817-18 (quoting Karraker, 411 F.3d at 836-37).
300. Id. at 818.
301. Id. at 818-19.
302. Kroll, 691 F.3d at 818-19.
303. Id. at 819.
982 THE WAYNE LAW REVIEW [Vol. 59:951
it concluded was the most critical factor.
Common definitions of
psychological counseling suggested that, at least sometimes, such
counseling is used for diagnosis and treatment of mental illnesses.
fact, WLAA admitted that it instructed Kroll to attend counseling in
order to discuss her mental health.
Thus, a reasonable jury could
conclude that WLAA intended for Kroll to attend counseling in order to
explore possible mental health impairment and to receive corresponding
The court stated that such an 'uncovering oI mental-health
defects at an employer`s direction is the precise harm that §
12112(d)(4)(A) is designed to prevent absent a demonstrated job-related
The court of appeals determined, however, that the absence of
information needed to evaluate the remaining factors made it difficult to
decide the weight to be given to those factors.
The court, therefore,
declined to comment on these factors, which, ultimately, were not
dispositive to its analysis.
Based solely on factors one, two, and three, then, the Sixth Circuit
held that summary judgment in favor of WLAA had been improper.
The court noted, however, that WLAA might still be entitled to summary
judgment on the question of whether the counseling at issue was 'job
related` and consistent with business necessity`¨; however, because the
district court did not address those questions, they were not addressed on
The court therefore remanded the matter to the district court
for further proceedings consistent with its opinion.
A brief dissent was penned by Judge Jeffrey Sutton, focusing on the
specific language of § 12112(d)(4)(A), which stated that '[a] covered
entity shall not require a medical examination.
Judge Sutton observed
that WLAA had not compelled Kroll to take a medical examination.
Instead, 'it compelled her to obtain psychological counseling,¨ which
she could 'obtain on her own terms and with any counselor she
308. See Kroll, 691 F.3d at 819.
310. Id. at 819.
312. Id. at 819-20.
313. Id. at 820.
314. Kroll, 691 F.3d at 820.
317. Id. (Sutton, J., dissenting).
2014] EMPLOYMENT AND LABOR LAW 983
Further, WLAA 'had no interest in the outcome of the
counseling,¨ in any diagnosis, in the type of counseling received, or in
'anything at all save verification that she obtained some form of
counseling if she was going to continue providing EMT services for the
The dissent also noted that, even under the
EEOC guidelines, not all psychological tests are medical
Because 'Kroll had the right to meet the counseling
requirement on her own terms, some of which could have resulted in a
medical examination and others of which would not,¨ WLAA did not
necessarily require Kroll to obtain a medical examination.
IV. EMPLOYMENT AND OTHER STATUTES
A. Public Employment Relations Act
In Bailey v. Callaghan,
the Sixth Circuit Court of Appeals
considered whether the U.S. Constitution requires Michigan public
schools to collect membership dues for unions representing public school
The issue was triggered by the enactment of Public Act 53
which modified Michigan`s Public Employment Relations
PERA grants state employees in Michigan the right to
organize and be represented by a labor organization of their choice.
One oI the statute`s requirements is that public employers must bargain
with their employees` designated representatives regarding the terms and
conditions of employment.
Public Act 53 of 2012 amended PERA so that '[a] public school
employer`s use of public school resources to assist a labor organization
in collecting dues or service fees from wages of public school employees
is a prohibited contribution to the administration of a labor
At issue in Bailey was whether Public Act 53`s
319. Kroll, 691 F.3d at 820.
321. Id. at 820-21.
322. Id. at 821.
323. Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013).
324. Id. at 957.
325. The decision by the district court provides a background discussion on the
legislative history of Public Act 53 of 2012, which is codified at MICH. COMP. LAWS
ANN. § 423.210 (West 2013). See Bailey v. Callaghan, 873 F. Supp. 2d 879, 881-82 (E.D.
Mich. 2012), revd, 715 F.3d 956 (6th Cir. 2013).
326. MICH. COMP. LAWS ANN §§ 423.201-.217 (West 2013).
327. MICH. COMP. LAWS ANN. § 423.209(1)(a).
328. MICH. COMP. LAWS ANN. § 423.215(1).
329. 2012 Mich. Pub. Act 53.
984 THE WAYNE LAW REVIEW [Vol. 59:951
amendment to PERA violated the federal constitutional rights of public
The provision was challenged by individual public
school employees and several unions, which argued that the ban violated
the First and Fourteenth Amendments.
The federal district court
granted a preliminary injunction preventing the defendants
agents from enforcing Public Act 53 pending the resolution of the matter
on its merits. The defendants appealed.
The Sixth Circuit Court of Appeals examined the case under the
framework for determining the appropriateness of a preliminary
injunction. The factors considered by the court were
(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction
would cause substantial harm to others; and (4) whether the
public interest would be served by the issuance of the
The court initially determined that the likelihood of success factor
would be determinative because the court necessarily would have to
resolve the merits of the plaintiffs` constitutional claims.
The court first addressed the merits of the plaintiffs` First
The plaintiffs argued that
unions engage in speech (among many other activities); they
need membership dues to engage in speech; if the public schools
do not collect the unions` membership dues for them, the unions
will have a hard time collecting the dues themselves; and thus
Public Act 53 violates the unions` right to free speech.
According to the court, however, this premise had already been
explicitly rejected by the U.S. Supreme Court in Ysursa v. Pocatello
330. Bailey v. Callaghan, 715 F.3d 956, 957 (6th Cir. 2013).
331. Id. at 958.
332. Id. Members of the Michigan Employment Relations Commission, the state
agency charged with enforcing the provisions of PERA, were named as defendants.
333. Id. at 958.
334. Id. (citing Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir.
335. See id. at 958.
336. Bailey, 715 F.3d at 958-60.
337. Id. at 958.
2014] EMPLOYMENT AND LABOR LAW 985
In Ysursa, the Supreme Court upheld a
provision in Idaho`s Right to Work Act permitting public employees to
authorize payroll deductions only for general union dues and not for
union political activities.
Quoting Ysursa, the Sixth Circuit stated that
'[t]he First Amendment prohibits government from abridging the
freedom of speech`: it does not confer an [affirmative right] to use
government payroll mechanisms for the purpose of obtaining funds for
The court further emphasized that Public Act 53 did not
actually restrict union speech at all; the unions remained free to speak on
whatever issue they wished.
Further, 'nothing in the First Amendment
prevents a State from determining that its political subdivisions may not
provide payroll deductions for union activities.¨
deductions were the only acts that Public Act 53 precluded, the court
considered Ysursa to be determinative of the matter.¨
The Sixth Circuit nonetheless considered the plaintiffs` challenge to
First, the plaintiffs argued that the Supreme Court`s decision in
Cornelius v. NAAC
supported their claim that the school payroll
deduction process was a 'non-public forum¨ for purposes of the First
Secondly, the plaintiffs argued that Public Act 53 was
'viewpoint discriminatory in a way that the statute in Ysursa was not.¨
Cornelius involved the exclusion of certain groups from the federal
government`s Combined Federal Campaign.
Through the Campaign,
nonprofit groups sought donations from federal employees.
the non-profits were permitted to disseminate thirty-word written
statements presenting their cause to employees, who then could donate to
the group by a lump-sum payment or payroll deduction.
Court held that the Campaign was a nonpublic forum.
The Bailey plaintiffs argued that, under Cornelius, a school`s payroll
deduction procedure is a non-public forum from which the unions could
338. Id. (citing Ysursa v. Pocatello Educ. Ass`n, 555 U.S. 353, 355 (2009)).
339. Ysursa, 555 U.S. at 353.
340. Bailey, 715 F.3d at 958 (quoting Ysursa, 555 U.S. at 355).
342. Id. (quoting Ysursa, 555 U.S. at 355).
343. See id. at 958-59 (stating that '[s]eldom is precedent more binding than Ysursa is
in this case¨).
345. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985).
346. See Bailey, 715 F.3d at 958-59.
347. Id. at 959.
351. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 789 (1985).
986 THE WAYNE LAW REVIEW [Vol. 59:951
not be excluded.
The Bailey court disagreed, stating that a forum,
whether 'real or virtual,¨ requires 'some form of communicative
The administrative process in which sums are deducted from
an employee`s paycheck involves no communication at all and so is not a
In Cornelius, no one claimed that the payroll deduction process
itself was speech; at issue instead was whether the thirty-word
solicitations were speech, and according to the Supreme Court, if the
thirty-word solicitations were not speech, 'we need go no further.¨
The Sixth Circuit echoed this in Bailey: 'Ysursa makes clear that payroll
deductions are not speech, so we need go no further with the argument
The Bailey plaintiffs also argued that Public Act 53 was viewpoint
They contrasted Public Act 53, which was applicable
only to public school unions, to the statute in Ysursa, which applied to all
The Sixth Circuit rejected this contention on multiple
The court first stated that, even assuming that viewpoint
discrimination is problematic with respect to the process of payroll
deductions, the text of the Act did not facially discriminate based upon
For example, the Act did not allow or deny a particular
union access to the payroll deduction process based upon the policy
position of the union.
Because the Act is silent as to speech of any
kind, it is facially neutral.
The court then addressed the argument that Public Act 53 denied
access to the payroll deduction process only to certain unions, thereby
acting as a proxy for viewpoint discrimination.
The court again
pointed to the language of Public Act 53, reiterating that the Act did not
explicitly deny payroll access to any particular union.
What the Act
actually did, according to the court, was bar 'public school employers
from using their resources to collect membership dues on behalf of any
352. Bailey, 715 F.3d at 958-59.
353. Id. at 959 (quoting Perry Educ. Ass`n v. Perry Local Educators` Ass`n, 460 U.S.
355. Id. (quoting Cornelius, 473 U.S. at 797).
356. Id. at 959.
358. Bailey, 715 F.3d at 959.
362. Id. at 959.
363. Id. at 959-60.
364. Bailey, 715 F.3d at 959.
2014] EMPLOYMENT AND LABOR LAW 987
Therefore, 'the particular union to which an employee belongs
. . . is irrelevant to whether a public employer can collect the employee`s
Accordingly, under Public Act 53, it did not matter
who the speaker was; what mattered was the employer.
According to the court, the only argument left for the plaintiffs was
the contention that the court should look past the Act`s facial neutrality
to conclude that the Act`s real purpose was to 'suppress speech by
However, the court stated that such a review was
foreclosed by the Supreme Court, which has stated that 'it is a familiar
principle of constitutional law that this Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit
The court therefore declined to 'peer past¨ the text
of Public Act 53 'to infer some invidious legislative intent.¨
Lastly, the court addressed the plaintiffs` Fourth Amendment equal
protection argument, which it analyzed under a rational basis review
because it involved neither a fundamental right nor a suspect class.
Such review is highly deferential so that 'any conceivable legitimate
governmental interest will [be considered constitutional]; and even then
it is constitutionally irrelevant whether the conceivable interest actually
underlay the enactment of the challenged provision.`¨
The court noted
that a rational basis review signals that the issue likely should be
resolved by the legislature rather than by the courts.
court briefly considered whether there was a legitimate interest in
support of the classification and found there was: 'the Legislature could
have concluded that it is more important for the public schools to
conserve their limited resources for their core mission than it is for other
state and local employers.¨
Accordingly, the court held that the
plaintiffs` equal protection claim failed.
Because their First and Fourteenth Amendment claims were each
without merit, the plaintiffs had no likelihood of success.
367. Id. at 959-60.
368. Id. at 960.
369. Id. (quoting United States v. O`Brien, 391 U.S. 367, 383 (1968)).
370. Bailey, 715 F.3d at 960 (citing Wis. Educ. Ass`n Council v. Walker, 705 F.3d
640, 649-50 (7th Cir. 2013)).
372. Id. (emphasis omitted) (quoting Fednav, Ltd. v. Chester, 547 F.3d 607, 624-625
(6th Cir. 2008)).
373. See id. at 960.
376. Bailey, 715 F.3d at 960.
988 THE WAYNE LAW REVIEW [Vol. 59:951
injunction issued by the district court was reversed, and the case was
remanded for further proceedings consistent with the court`s decision.
In dissent, Judge Jane Stranch strongly disagreed with the majority
opinion, stating that it 'mischaracterize[d] the First Amendment interests
at stake, glosse[d] over key distinctions the Supreme Court requires us to
observe, and avert[ed] its gaze from Act 53`s blatant viewpoint
Judge Stranch framed the issue as whether 'the
government may burden expression it disagrees with by selectively
restricting access to public resources that facilitate that expression.¨
The dissent initially examined the Supreme Court`s Ysursa
In contrast to the majority, the dissent did not find Ysursa
controlling based on two critical factors.
First, Judge Stranch asserted
that the statute at issue in Ysursa applied to 'all deductions for political
activities, not just to a disfavored few.¨
Secondly, the dissent argued
that there was no suggestion that the statute at issue in Ysursa
'impermissibly discriminate[d] on the basis of viewpoint.
agreeing that, under Ysursa, the Constitution 'does not require a state to
facilitate all union speech by providing universal payroll deductions, or
decline to do so for all,¨ Judge Stranch found that Ysursa did not address
what happens when the statute at issue fails to act evenhandedly.
Thus, the majority should have considered 'whether Michigan`s choice
to exclude just one subset of unions from the speech-facilitating
mechanism of payroll deduction violates the First Amendment.¨
dissent`s view, because the First Amendment issues in Bailey were
distinct from those in Ysursa, the court was required to scrutinize the
allegations of political viewpoint discrimination.
Judge Stranch then examined the question of viewpoint neutrality,
criticizing the majority`s view that Public Act 53 was 'facially
The dissent opined that 'facial neutrality of a speech
regulation does not resolve its legitimacy.¨
Instead, it is the court`s
'duty to ferret out hidden viewpoint bias¨ or, at the minimum, to assess
377. Id. at 960-61.
378. Id. at 961.
379. Id. at 961.
380. Id. at 962-65 (citing Ysursa v. Pocatello Educ. Ass`n, 555 U.S. 353 (2009)).
382. Bailey, 715 F.3d at 962.
384. Id. at 963.
386. Id. at 964.
387. Id. at 964-65.
388. Bailey, 715 F.3d at 965.
2014] EMPLOYMENT AND LABOR LAW 989
the legislature`s justifications for the Act`s selective ban.
Stranch examined the neutral justifications for Public Act 53 offered by
the defendants, including cost savings, promoting union accountability,
and providing a 'check on union power.¨
She found each of these to
be unpersuasive, such that Public Act 53 was, in fact, meant to 'muzzle¨
the specific viewpoint of school unions and the positions they
Public Act 53, therefore, was an impermissible restriction on
the plaintiffs` speech.
As such, the plaintiffs` First Amendment claims
were likely to succeed, and so the dissent would have affirmed the
district court`s preliminary injunction.
PERA also was in play in AFSCME Local 25 v. Wayne County, in
which the Michigan Court of Appeals, in a 2-1 decision, sided with
Wayne County and its chief executive officer (CEO) in upholding the
County`s unilateral implementation of a twenty percent wage decrease
and benefit concessions for its employees.
On behalf of those
employees, AFSCME Council 25 had argued that the concessions
violated Wayne County ordinances requiring that any action fixing
compensation rates for County employees be approved by the Wayne
Because, following a bargaining impasse, the
CEO had implemented a last best offer fixing compensation rates without
commission approval, in Council 25`s view, that offer was unlawful. The
trial court agreed and granted partial summary disposition to Council
In response, the defendants moved for reconsideration or,
alternatively, for a stay pending appeal.
The defendants argued that
they were immune from suit under the Governmental Tort Liability Act
389. Id. at 966.
390. Id. at 966-69.
391. See id.
392. Id. at 969.
394. AFSCME Local 25 v. Wayne Cnty, 297 Mich. App. 489; 824 N.W.2d 271 (2012),
appeal dismissed, 493 Mich. 899; 822 N.W.2d 788 (2012).
395. See id. at 493. The original plaintiffs were four unions that were parties to a
collective bargaining agreement with the county. When the parties could not reach a
successor agreement, the unions sued. Council 25 then was permitted to intervene.
Eventually, all of the plaintiffs except for Council 25 were dismissed because the trial
court determined that their claims first had to be raised with the Michigan Employment
Relations Commission. This left Council 25 to argue that imposition of a last best offer
violated county ordinances. Id. at 492-93.
396. Id. at 492-93.
397. Id. at 493.
990 THE WAYNE LAW REVIEW [Vol. 59:951
The trial court denied the defendants` motion.
immunity was at issue, the defendants could appeal by right and did
The key question before the court of appeals was whether the
County, through its CEO, could implement a last best offer that included
wage and benefit concessions for county employees without first
obtaining approval from the Wayne County Commission. To answer that
question, the court not only had to consider Michigan`s Public
Employment Relations Act (PERA),
but it also had to interpret
language from the Wayne County Charter and the Wayne County Code
The court of appeals began by reviewing bargaining obligations of
public employers and employees under PERA.
That statute`s primary
purpose is to 'resolve labor-management strife through collective
Under PERA, once a collective bargaining agreement
(CBA) expires, public employers must bargain collectively, in good
faith, with respect to mandatory subjects of bargaining (generally wages,
hours, and other terms and conditions of employment).
are unsuccessful, the parties reach an impasse.
Prior to impasse,
'neither party may take unilateral action with respect to a mandatory
subject of bargaining.¨
Once impasse has been reached, and if the
parties have negotiated in good faith, their statutory duty under PERA
has been met, and a public employer may unilaterally implement its last
According to the court of appeals, 'intrinsic to the duty to
collectively bargain in good faith is the authority to unilaterally
implement a [last best offer] when negotiations have reached an
398. Id. at 493-94. The GTLA is codified at MICH. COMP. LAWS ANN. §§ 691.1401-
.1419 (West 2013).
399. AFSCME Local 25, 297 Mich. App. at 494.
401. MICH. COMP. LAWS. ANN. §§ 423.201-.217 (West 2013).
402. CODE OF ORDINANCES, WAYNE COUNTY (2013), available at http://
403. See AFSCME Local 25, 297 Mich. App. at 494.
404. Id. (citing Detroit Fire Fighters Ass`n, IAFF Local 344 v. City of Detroit, 482
Mich. 18; 753 N.W.2d 579 (2008)).
406. Id. at 495.
407. Id. (citing Jackson Cmty. Coll. Classified & Technical Ass`n, Mich. Educ.
Support Pers. Ass`n v. Jackson Cmty. Coll., 187 Mich. App. 708, 712; 468 N.W.2d 61
408. Id. at 495.
2014] EMPLOYMENT AND LABOR LAW 991
Although the parties in the case did not dispute that impasse
had been reached, Council 25 did dispute whether the County had the
authority to implement its last best offer without commission approval to
the extent that the offer affected wages and benefits of county
The court concluded that this argument contravened the
concept that the authority to implement a last best offer upon impasse is
part of the negotiation process.
The court emphasized that the last best
offer is a bargaining tactic integral to the collective bargaining process
and, as such, is a continuation of the collective bargaining process.
Because section 4.323(b) of the Wayne County Charter authorizes the
county`s labor relations division to 'act for the County under the
direction of the CEO in the negotiation and administration of collective
bargaining contracts,¨ the court concluded that 'commission approval
was not required before the [last best offer] was implemented.¨
The court of appeals next addressed the argument that certain Wayne
County ordinances required the CEO to seek commission approval prior
to implementing a wage offer.
Ordinance 90-847, section 3(a) states,
'Subject to county commission approval hereinafter provided, each
county agency shall formulate and promulgate rules to prescribe the
organization, procedures and methods by which it serves the public or
regulates any public or private activity, process, facility, operation or
Ordinance 90-847, section 3 sets forth specific requirements that
must be met before an agency adopts a rule, including detailed notice,
processing, and commission approval.
However, Ordinance 90-847,
section 6 exempts certain rules from these procedural requirements,
409. AFSCME Local 25, 297 Mich. App. at 496.
413. Id. at 497 (citing WAYNE COUNTY, MICH., CHARTER §4.323).
414. See id. at 497-99.
415. AFSCME Local 25, 297 Mich. App. at 497 (citing WAYNE COUNTY, MICH., CODE
OF ORDINANCES, Ordinance 90847, § 3(a) (1991)). The court also looked to Ordinance
90-847, § 2, which defines a rule as
a directive, statement, standard, policy, regulation, proclamation, ruling,
determination, order, instruction or interpretation, which is of general effect
and future application, which applies, implements or makes more specific
those express laws enforced, implemented or administered by an officer or
agency, or which prescribes the organization, procedure or practice of that
office or agency, including the amendment, suspension or rescission thereof.
Id. at 498 (quoting WAYNE COUNTY, MICH., CODE OF ORDINANCES, Ordinance 90847, §
2) (internal quotation marks omitted).
416. Id. at 498-99 (citing WAYNE COUNTY, MICH., CODE OF ORDINANCES, Ordinance
90847, § 3).
992 THE WAYNE LAW REVIEW [Vol. 59:951
including commission approval.
Specifically exempted are rules
addressing '[a] determination, decision, order or opinion in a case,¨ '[a]
declaratory ruling or opinion as applied to a fixed and stated set of facts,¨
and '[a]n individual decision by an agency to exercise or not to exercise
a legal power, although private rights and interests are affected by that
As noted by the court, these exemptions themselves are
subject to limitations of Ordinance 90-847, section 7, which states,
A memorandum, directive, order or determination which
governs the internal management, organization or procedures of
an agency, but which also addresses or substantially impacts
upon the following matters, shall not be valid and of effect
unless in full compliance with the commission approval
requirements of this chapter:
(1) Fix the rate of compensation for county officers and
employees, including fringe benefits, per diem rates and
lump sum payments in lieu of reimbursed expenses, where
these rates are not otherwise fixed by contract or law.
Council 25 relied primarily upon the limitations of Ordinance 90-
847, section 7 in arguing that commission approval was required prior to
implementing the last best offer because that offer affected county
employees` rates of compensation and benefits.
The court of appeals
disagreed, stating that the plain language of section 7 only 'pertains to
the internal management, organization or procedures of an agency.¨
The court further opined that, based on Ordinance 90-847, it was
apparent that it applied to agency rulemaking and was 'wholly
inapplicable to collective bargaining and negotiations,¨ which are duties
relegated to the labor relations division by section 4.323 of the Wayne
Thus, the trial court had erred by relying on the
ordinance in granting partial summary judgment for Council 25.
The court also concluded the commission was empowered by statute
to approve county employee salaries after a successor agreement is
Therefore, once negotiations progressed beyond imposition of
417. Id. at 499-500.
419. Id. (emphasis added).
420. AFSCME Local 25, 297 Mich. App. at 499-500.
423. Id. at 501-02.
424. Id. at 501.
2014] EMPLOYMENT AND LABOR LAW 993
the last best offer, the commission could ratify any salary changes prior
to the agreement taking effect.
Likely influencing the court`s decision
was the fact that this ratification process, and not the procedure outlined
in Ordinance 90-847, was the process used when the parties eventually
reached a successor contract.
Lastly, the court explained that accepting Council 25`s interpretation
would 'require the legislative branch, the commission, to intrude into the
negotiation process, exclusively granted to the executive, rather than to
perform its overseeing function in ratifying or rejecting the CBA upon its
Accordingly, the court of appeals reversed and remanded
the dispute for entry of summary disposition in favor of the
A spirited dissent penned by Judge Michael J. Kelley disagreed with
the majority`s opinion on multiple fronts.
Specifically, the dissent
concluded that the provisions of PERA could not be read to include
codification of the last best offer negotiation tactic and that PERA also
could not be read to limit a local government`s authority to regulate its
negotiator`s use of this tactic.
Therefore, the county CEO could not
use the last best offer tactic if 'it would result in lower benefits for the
employees without first obtaining approval from . . . the Wayne County
Although Judge Kelley agreed with the majority that the use of the
last best offer was a permissible negotiation tactic under PERA, he did
not agree that the statutory duty to bargain in good faith intrinsically
included the use of this tactic, as stated by the majority.
that the majority had misinterpreted the use of the last best offer gambit
as a requirement under PERA for 'local governments to give unfettered
authority to their representatives to use whatever tactics the
representative might wish to use, as long as those tactics are consistent
with good-faith bargaining.¨
In contrast, the dissent viewed PERA as
426. AFSCME Local 25, 297 Mich. App. at 501.
428. Id. at 502.
429. Id. at 502-12 (M.J. Kelly, J., dissenting). The dissenting opinion referred to the
ordinances by their codification in the Wayne County Code of Ordinances rather than by
the numbers assigned at their adoption. Thus, the chief ordinance at issue in the case,
referred to by the majority as 90-847, was referred to in the dissent as §§ 5-1 through 5-6
of the Wayne County Code. Id. at 502 n.1.
430. Id. at 502.
431. AFSCME Local 25, 297 Mich. App. at 502.
432. Id. at 503-04.
433. Id. at 504.
994 THE WAYNE LAW REVIEW [Vol. 59:951
limited in its application, stating that it should not be read to 'deprive
local governments of the ability to specify whether, when, or how
specific bargaining tactics may be used.¨
Under this view, PERA does
not prevent a local government from either directly or indirectly limiting
its own negotiator`s use of a bargaining tactic.
Judge Kelley disagreed with the majority`s interpretation of the
Wayne County Charter and ordinances as well.
While the labor
relations division, under the direction of the CEO, had the responsibility
to negotiate and administer collective bargaining agreements, the CEO`s
power to direct the labor relations division was not unlimited.
Wayne County Charter provides that the CEO may '[s]upervise,
coordinate, direct, and control all county facilities, operations, and
functions except as otherwise provided by law or this Charter[.]`¨
Therefore, opined the dissent, the CEO`s authority to direct the labor
relations division does not include the authority to direct that division to
violate Wayne County ordinances or its charter.
relevant question was whether Wayne County`s ordinances required the
CEO to obtain approval prior to implementing a last best offer.
Unsurprisingly, Judge Kelley found that it did not.
with the majority`s interpretation of Ordinance 90-847, which states that
a 'memorandum, directive, order or determination which governs the
internal management, organization or procedures of an agency but which
also addresses or substantially impacts upon [certain] matters, shall not
be valid and of effect unless it complies with the commission approval
requirements¨ of the Wayne County Code.
The majority found that
this section applied only to agency rulemaking and was thus inapplicable
to collective bargaining and negotiations.
The dissent, in contrast,
found the phrase 'but which also addresses or substantially impacts upon
[certain] matters¨ to require commission approval for additional matters
specified in the ordinance, including any 'order or determination that
fixes the rate of compensation for county officers and employees,
436. Id. at 505-10.
437. AFSCME Local 25, 297 Mich. App. at 506.
438. Id. (alterations in original) (quoting WAYNE COUNTY, MICH., CHARTER §
439. Id. at 506.
441. Id. at 50607.
442. Id. at 508.
443. AFSCME Local 25, 297 Mich. App. at 508.
2014] EMPLOYMENT AND LABOR LAW 995
including fringe benefits.¨
As stated by the dissent, 'This ordinance
represents a clear policy choice by the local legislature: the Wayne
County Commission determined that it is in the best interests of the
county to maintain the status quo on the pay and benefits for county
employees unless the change is directly approved by the Commission.¨
The dissent argued alternatively that fixing the rate of compensation
and benefits for government employees implicates internal management
of an agency.
Thus, the CEO`s use of the last best offer tactic is a
'directive or order¨ governing the internal management of the agency
because it fixes the rate of compensation and benefits for county
employees, although on a temporary basis.
Therefore, Ordinance 90-
847 required commission approval prior to the imposition of a last best
B. Michigan Employment Security Act
In Sheppard v. Meijer Great Lakes Limited, the Michigan Court of
Appeals determined that an employee terminated for taking a leave of
absence without employer permission was nonetheless eligible for
The decision was notable for its review and interpretation of the
statutory criteria for determining whether an employee has left a job
voluntarily under the Michigan Employment Security Act (MESA).
The MESA provides wage loss benefits to persons unemployed through
no fault of their own.
These benefits are not available, however, for a
claimant whose separation from employment is his or her own fault.
A claimant thus may be disqualified from benefits under a variety of
circumstances, including where the claimant '[l]eft work voluntarily
without good cause attributable to the employer[.]` Courts construe these
445. Id. at 508.
446. Id. at 509.
449. Sheppard v. Meijer Great Lakes Ltd., No. 300681, 2012 WL 6633993 (Mich. Ct.
App. Dec. 20, 2012).
450. Id. at *3.
451. See MICH. COMP. LAWS ANN. §§ 421.1-421.75 (West 2013).
452. Sheppard, 2012 WL 6633993, at *2.
453. Id. (alterations in original) (quoting MICH. COMP. LAWS ANN. 421.29(1)(a)).
996 THE WAYNE LAW REVIEW [Vol. 59:951
Sheppard was employed as a part-time clerk for Meijer and also as a
full-time receptionist for another unrelated employer.
2009, Sheppard was terminated from her full-time receptionist position
due to the employer`s financial difficulties.
Sheppard requested a two-month leave of absence from Meijer, and her
last day of work was February 8, 2009.
Sheppard`s supervisor at Meijer subsequently testified that he
explained to Sheppard that she would need formal written approval from
the store director for her leave of absence.
The supervisor further
testified that he assumed that Sheppard requested, and received, formal
In contrast, Sheppard testified that she believed that her
supervisor had received the required approval.
Thus, Sheppard left her
employment at Meijer on February 8, 2009, believing that she had been
approved for a voluntary leave.
Because Sheppard`s employment file
did not contain a written approval for a voluntary leave of absence, the
store director concluded that Sheppard`s leave had not been properly
authorized and terminated her employment on March 29, 2009.
Sheppard sought and began receiving unemployment benefits in
Meijer protested this decision and requested a
redetermination, claiming that Sheppard had voluntarily resigned.
Michigan Unemployment Insurance Agency (UIA), the agency that
enforces and administers the MESA, determined that Sheppard was not
qualified for unemployment benefits due to misconduct under MCL
section 421.29(1)(b) because she had been 'suspended or discharged for
misconduct connected with the individual`s work.¨
her claim to a UIA hearing referee, who, after an evidentiary hearing,
concluded that Sheppard 'did not receive approval from [Meijer] for her
2 month vacation.
As a result, [Sheppard] was discharged by
The hearing referee therefore found that Sheppard was not
qualified for unemployment benefits on the basis of misconduct.
454. Id. at *1.
458. Sheppard, 2012 WL 6633993, at *1.
464. Sheppard, 2012 WL 6633993, at *1.
2014] EMPLOYMENT AND LABOR LAW 997
Sheppard appealed to the UIA board of review, which affirmed the
decision based on the voluntary leaving provision of the MESA, MCL
section 421.29(1)(a), rather than the misconduct provision.
stated that Sheppard had 'abandoned her employment when she left
work without first securing proper approval for a leave of absence.¨
Thus, the board modified the hearing referee`s determination of
misconduct and held that Sheppard was disqualified from benefits under
MCL section 421.29(1)(a).
Sheppard appealed the board`s decision to the circuit court, which
affirmed the board of review`s denial of benefits.
sought leave to appeal to the court of appeals but was denied.
However, the supreme court remanded to the court of appeals for a
determination on leave granted.
Because the case involved an agency decision, the court of appeals
had to determine 'whether the lower court applied correct legal
principles and whether it misapprehended or grossly misapplied the
substantial evidence test to the agency`s factual findings.¨
Additionally, the applicable standard of review limited the court`s
authority to 'determining whether the agency`s action was authorized by
law and whether the agency`s findings of fact [were] supported by
competent, material, and substantial evidence on the whole record.`¨
Utilizing this standard, the court first addressed voluntary
termination under MCL section 421.29(1)(a).
Under the statute, 'when
determining whether an employee has voluntarily left work, the threshold
question is whether the claimant voluntarily quit . . . or was
The appellate court emphasized that a voluntary
departure is an intentional act.
As prior decisions have held, when an
employee requests a leave of absence, and the employer subsequently
terminates the employee, the employee has not voluntarily quit.
470. Sheppard, 2012 WL 6633993, at *1.
472. Sheppard v. Meijer Great Lakes Ltd., 490 Mich. 1004; 807 N.W.2d 708 (2012).
473. Sheppard, 2012 WL 663993, at *1-2.
474. Id. (citing Boyd v. Civil Serv. Comm`n, 220 Mich. App. 226, 234; 559 N.W.2d
476. Id. at *2. See also MICH. COMP. LAWS ANN. § 421.29(1)(a) (West 2013).
477. Sheppard, 2012 WL 6633993, at *3.
478. Id. (citing McArthur v. Borman`s, Inc., 200 Mich. App. 686, 690; 505 N.W.2d. 32
479. Id. (citing Ackerberg v. Grant Cmty. Hosp., 138 Mich. App. 295, 300; 360
N.W.2d. 599 (1984)).
998 THE WAYNE LAW REVIEW [Vol. 59:951
court has specifically decline[d] to create a doctrine of constructive
voluntary leaving where, as here, the claimant was in fact discharged and
the employer failed to sustain the discharge as one for misconduct
connected with work.¨
Applying this analysis to the facts before it, the
Sheppard court found that both the circuit court and the board of review
had improperly applied the law in holding that Sheppard had voluntarily
According to the court of appeals, Meijer in fact had terminated
Because Sheppard was discharged, her
departure was not voluntary.
The court also addressed Meijer`s argument that the outcome of the
case was controlled by the Michigan Supreme Court case of Jenkins v.
Appeal Board of Michigan Employment Security Commission.
court noted, however, that in Jenkins, the plaintiff had been disqualified
due to 'misconduct connected with work¨ because he left work half a
day early after his request to do so was denied by his foreman.
court also observed that the Michigan Supreme Court later relied on
Jenkins in holding that it is inappropriate to apply the voluntary leaving
provision of the MESA in cases where an employee is absent from
Rather, in such cases, the misconduct provision of the statute
should be applied.
The court of appeals also concluded that the board of review had not
properly analyzed whether Sheppard abandoned her employment under
MCL section 421.29(1)(a), given that its opinion was missing essential
The voluntary leaving provision provides specific
language defining when an individual who fails to report to work has
voluntarily left that work:
An individual who is absent from work for a period of 3
consecutive work days or more without contacting the employer
in a manner acceptable to the employer and of which the
individual was informed at the time of hire shall be considered to
480. Id. at *2-3.
483. Sheppard, 2012 WL 6633993, at *2-3.
484. Id. (citing Jenkins v. Appeal Bd. of Mich. Emp. Sec. Comm`n, 364 Mich. 379,
382; 110 N.W.2d 899, 900 (1961)).
485. Id. at *3.
486. Id. (citing Wickey v. Appeal Bd. of Mich. Emp`t Sec. Comm`n, 369 Mich. 487,
503-04; 120 N.W.2d 181 (1963)).
2014] EMPLOYMENT AND LABOR LAW 999
have voluntarily left work without good cause attributable to the
Thus, the circuit court had erred in concluding that the board of
review had applied the correct legal principles.
Finally, the appellate court rejected Meijer`s assertion that
Sheppard`s benefits should be denied under the misconduct provision.
The court held that Meijer had not exhausted its administrative remedies
under the misconduct provision because the board of review had
determined that this provision did not apply.
Because Meijer failed to
appeal that decision to the circuit court, the court of appeals had no
authority to review the board`s determination on that issue.
thus vacated the decisions of the circuit court and the board of review
and remanded for reinstatement of Sheppard`s unemployment benefits.
C. Michigan Medical Marihuana Act
In Casias v. Wal-Mart Stores, Inc., the Sixth Circuit Court of
Appeals affirmed a Michigan federal district court decision holding that
the Michigan Medical Marihuana Act (MMMA) does not regulate
Passed in 2008, the MMMA regulates and
protects the medical use of marijuana.
At issue in Casias, however,
was whether it applies to employment actions by private employers
regarding employee marijuana use.
Joseph Casias was employed at a Wal-Mart store in Battle Creek,
Casias was a long-term survivor of sinus cancer and also
had been diagnosed with an inoperable brain tumor at age seventeen.
During Casias`s employment at Wal-Mart, he endured chronic and
persistent head and neck pain requiring pain medication.
489. Sheppard, 2012 WL 6633993, at *3 (citing MICH. COMP. LAWS ANN. §
490. Id. at *4.
495. Casias v. Wal-Mart Stores Inc., 695 F.3d 428 (6th Cir. 2012).
496. MICH. COMP. LAWS ANN. §§ 333.26421-.26430 (West 2013). While the statute
itself uses the spelling 'marihuana,¨ the more common spelling ('marijuana¨) will be
used in this article.
497. Casias, 695 F.3d at 431.
1000 THE WAYNE LAW REVIEW [Vol. 59:951
taking prescription medication, Casias experienced ongoing pain as well
as side effects from the medication.
After the MMMA was passed in
2008, Casias`s physician recommended marijuana to address his ongoing
Casias was issued a registry card by the Michigan
Department of Community Health and began using medical marijuana
for pain management in 2009.
Casias consistently maintained that he
only used marijuana in accordance with the MMMA, never used it at
work, and never came to work under the influence of the drug.
claimed that he used other prescription medications during working
Later that same year, Casias injured his knee while at work; in
accordance with the company`s standard drug use policy, Wal-Mart
required that Casias take a drug test.
The test was administered at a
Prior to the test, Casias informed the testing staff that he
was a qualifying patient under the MMMA and provided his registry
Subsequently, Wal-Mart notified Casias that he had tested
positive for marijuana.
Casias immediately met with his shift manager
to explain the positive results and showed his registry card to the shift
Casias explained that he never smoked marijuana while at
work nor came to work under the influence.
explained that the positive drug test was the result of ingesting marijuana
days before his work injury.
The shift manager took a photocopy of
the registry card.
A week after this meeting, Wal-Mart`s corporate
office directed the store manager, Troy Estill, to discharge Casias for
failing the drug test, as required under the company`s drug use policy.
Casias sued Wal-Mart and Estill in state court, alleging wrongful
discharge and violation of the MMMA.
Casias argued that, under the
MMMA, a business cannot discipline a medical marijuana card holder
503. Casias, 695 F.3d at 431.
506. Id. at 432.
509. Casias, 695 F.3d at 432.
515. Casias, 695 F.3d at 432.
2014] EMPLOYMENT AND LABOR LAW 1001
who is a qualifying patient for medical marijuana use.
removed the case to federal court on the basis of diversity jurisdiction
and then moved to dismiss the action for failure to state a claim.
Casias moved to remand, arguing that defendant Estill was a Michigan
citizen and properly joined, thus destroying diversity.
opposed the defendants` motion to dismiss.
The district court denied Casias`s motion to remand, holding that
Estill had been fraudulently joined.
The district court also granted the
defendants` motion to dismiss, concluding that Casias had no actionable
claim for wrongful termination because the MMMA does not regulate
private employers. Casias appealed to the Sixth Circuit Court of
The court of appeals identified two issues for review: (a) whether
'Estill was fraudulently joined¨ and (b) whether the Michigan legislature
intended the MMMA to 'regulate private employment.¨
The court of appeals` review of Casias`s motion to remand required
analysis of whether Casias had a claim against Estill.
Under the federal
doctrine of fraudulent joinder, when a non-diverse party is joined as a
defendant in the absence of a federal question, remand can be avoided
only by a demonstration that the non-diverse party was fraudulently
The party seeking remand must show that there is 'a colorable
basis for predicting that a plaintiff may recover against [a defendant].¨
A defendant is fraudulently joined if 'it is clear that there can be no
recovery under the law of the state on the cause alleged or on the facts in
view of the law.¨
Casias argued that the district court had improperly asserted diversity
jurisdiction because Estill, a Michigan citizen like Casias, was a proper
defendant in the case.
Casias contended that Estill had participated in
his wrongful discharge and was personally liable under Michigan law.
The defendants countered that Casias had failed to establish a colorable
521. Casias, 695 F.3d at 432.
524. Id. (citing Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904 (6th Cir.
525. Id. at 433 (citing Coyne v. Am. Tobacco Co., 183 F.3d 488 (6th Cir. 1999)).
526. Id. (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)).
527. Casias, 695 F.3d at 433.
1002 THE WAYNE LAW REVIEW [Vol. 59:951
claim because Estill had no involvement in the decision to terminate
Casias`s employment but only implemented the decision made by
Further, the defendants argued that under Michigan law,
corporate agents cannot be liable in a wrongful discharge action.
court of appeals agreed.
In explaining its decision, the appellate court first examined the
undisputed facts on which the lower court relied in reaching its decision
that personal liability did not attach to Estill:
Wal-Mart`s corporate office in Arkansas, not Mr. Estill, made
the decision to terminate Mr. Casias. In fact, Wal-Mart employed
a specific drug screening department at its corporate
headquarters for precisely this type of situation. Neither Mr.
Estill nor any other individual store manager had the authority or
the discretion to vary from the decisions made by Wal-Mart`s
Drug Screening department in Arkansas.
The court of appeals agreed with the district court`s observation that
the record was 'void of any evidence¨ supporting the conclusion that
Estill intended to cause, or did cause, any adverse action against
Accordingly, the court declined to adopt Casias`s position,
which would in essence 'make any individual who participates in the
communication` of a corporate decision a proper defendant in a cause of
With the jurisdictional issue resolved, the court of appeals then
addressed the merits of the defendants` motion to dismiss.
532. Id. (quoting Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914, 916 (W.D.
Mich. 2011)) (internal quotation marks omitted).
533. Casias, 695 F.3d at 433.
534. Id. The court of appeals recognized that its decision was 'in some tension¨ with
Michigan tort law. The court stated that, as 'there is an absence of guidance from
Michigan courts on the issue of a corporate employee`s personal liability and the required
level of individual participation necessary to establish a common-law wrongful
termination action,¨ it would consider Estill`s liability for wrongful termination in the
context of other laws. The court noted that Michigan courts recognize some limitations
on the personal liability of corporate actors under other Michigan laws and that Estill`s
actions fell squarely within those limitations. Because Estill was not a participant in the
decision to terminate Casias` employment, however, his 'mere acquiescence to the
command from Wal-Mart`s corporate office to communicate the discharge did not render
him subject to personal liability.¨ Id. at 434.
535. Id. at 434-35.
2014] EMPLOYMENT AND LABOR LAW 1003
argued in the district court that the MMMA protects patients against
disciplinary actions in private employment when using marijuana in
accordance with Michigan law.
In support of this proposition, Casias
offered both a plain language and a public policy interpretation.
Casias`s argument focused on the following provision of the
A qualifying patient who has been issued and possesses a
registry identification card shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right or
privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or professional
licensing board or bureau, for the medical use of marihuana in
accordance with this act.
Thus, at issue was the word 'business¨ and whether it modified only
the phrase 'licensing board or bureau¨ or was a stand-alone reference to
a private business.
If the term was read separately from 'licensing
board or bureau,¨ the MMMA seemingly applied to private employers.
The Sixth Circuit began by stating that, 'under Michigan law, courts
interpreting statutes must review the entire law itself in order to arrive at
the legislative intent and provide an harmonious whole. If the intent is
evident from this comprehensive review of the statute, [then the] inquiry
ends and [the court] employ[s] the plain intent.¨
When 'the language
used is clear and the meaning of the words chosen is ambiguous, a
common-sense reading of the provision will suffice, and no interpretation
Lastly, it stated that '[o]nly if the statute is of doubtful
meaning or ambiguous, is the door . open to a judicial determination of
the legislative intent.¨
The court of appeals then looked to the district court`s conclusion
that the statute 'does not regulate private employment; [r]ather the Act
provides a potential defense to criminal prosecution or other adverse
536. Id. at 434-35.
538. Casias, 695 F.3d at 435 (emphasis added) (quoting MICH. COMP. LAWS ANN. §
539. Id. at 435.
541. Id. (citing Grand Traverse Cnty. v. State, 450 Mich. 457; 538 N.W.2d 1, 4
542. Id. (citing People v. Lee, 447 Mich. 552; 526 N.W.2d 882 (1994)).
543. Id. (quoting Lee, 447 Mich. at 557) (internal quotation marks omitted).
1004 THE WAYNE LAW REVIEW [Vol. 59:951
action by the state.`¨
The district court had placed particular emphasis
on the fact that the MMMA contained no language repealing or
otherwise modifying or limiting the general rule of at-will
The appellate court agreed, holding that the MMMA
does not impose restrictions upon private employers such as Wal-Mart.
In doing so, the court looked at the placement of the term 'business¨ in
the statute, observing that the interpretation proposed by Casias would be
'entirely inconsistent with state law precedent which requires [the court]
to interpret the words in their context and with a view to their place in
the overall statutory scheme.`¨
The court further noted that under a
plain reading of the MMMA, the term 'business¨ is not a stand-alone
term but instead qualifies the type of 'licensing board or bureau.¨
this context, and taking into account the natural placement of the words
and phrases in relation to each other, the court found it evident that the
use of the term 'business¨ only referred to a business licensing board or
The Sixth Circuit also addressed Casias`s broader argument that the
plain language of the MMMA regulates private employment
relationships and, in doing so, restricts the ability of a private employer
to discipline an employee for drug use when the employee`s use of
marijuana is authorized by the state.
In rejecting this, the court
emphasized that the statute never expressly referred to employment, nor
is private employment implied in its 'discussion of occupational or
professional licensing boards.¨
Further, other courts addressing state
medical marijuana statutes have held that such laws do not regulate
private employment actions.
Therefore, the Sixth Circuit concluded
that Casias`s interpretation of the MMMA was not only unpersuasive on
its face but also in direct conflict with other states that have passed
544. Casias, 695 F.3d at 435 (alteration in original) (quoting Casias v. Wal-Mart
Stores, Inc., 764 F. Supp. 2d 914 (W.D. Mich. 2011)).
547. Id. at 436 (citing Manuel v. Gill, 481 Mich. 637, 648649; 753 N.W.2d 48
548. Id. at 436.
549. Id. 'The statute is simply asserting that a qualifying patient is not to be penalized
or disciplined by a business or occupational or professional licensing board or bureau for
his medical use of marijuana.¨ Id. (internal quotation marks omitted).
550. Casias, 695 F.3d at 436.
552. Id. (citing Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562, 2009 WL
965308, at *2 (Mont. 2009)).
2014] EMPLOYMENT AND LABOR LAW 1005
Finally, the court rejected Casias`s public policy interpretation.
a brief discussion, the court stated that such an interpretation 'could
potentially prohibit any Michigan business from issuing any disciplinary
action against a qualifying patient who uses marijuana in accordance
with the Act,¨
and it concluded that, if the legislature had intended
such a substantial change to Michigan law (i.e., the creation of a
completely new category of protected employees), it would have
expressly set forth this 'far-reaching revision¨ in the statute.
The dissenting opinion by Circuit Judge Karen Nelson Moore
disagreed with the majority`s initial conclusion that the district court had
Judge Moore argued that, contrary to the
majority`s conclusion, it was far from clear that Estill did not participate
in the alleged wrongful termination of Casias.
Although Judge Moore
agreed that Michigan courts have not addressed the issue of a corporate
employee`s personal liability in the context of common-law wrongful
discharge claims, she observed that the court was 'not free to predict
how a state court would rule on an unsettled issue of state law.¨
Because Michigan law is unclear on whether a non-diverse defendant
would be liable, in Judge Moore`s view, the 'federal court [had] no
subject-matter jurisdiction and must remand the case¨ to state court.
V. EMPLOYMENT CONTRACTS
Michigan law generally permits parties to shorten the applicable
limitations period by contract if the provision is clear and
Standard provisions contained in employment
applications, employee handbooks, and employee contracts have been
held to be valid agreements to shorten limitations periods for bringing
554. Id. at 436-37.
555. Id. at 437.
556. Casias, 695 F.3d at 437.
558. Id. at 438.
561. See Rory v. Cont`l Ins. Co., 473 Mich. 457; 703 N.W.2d 23 (2005); Clark v.
DaimlerChrysler Corp., 268 Mich. App. 138; 706 N.W.2d 471 (2005).
562. See, e.g., Clark, 268 Mich. App. 138 (six-month limitation period in employment
application precluded lawsuit); Schoonmaker v. Spartan Graphics Leasing, No. 1:07-cv-
1245, LLC, 2009 WL 1475492 (W.D. Mich. May 26, 2009) (one-year limitations period
in employee handbook precluded lawsuit).
1006 THE WAYNE LAW REVIEW [Vol. 59:951
In Hoogland v. Kubatzke,
the scope of such a provision was before
the Michigan Court of Appeals, which examined the provision`s
language to determine if it applied to all claims arising from the
plaintiff`s employment, regardless of the identity of the named
Frances Hoogland had been hired by Delta College in
January 2004, initially as a part-time employee in the facilities
management department and then, in September 2005, as an office
assistant in the human resources department.
In May 2006, Hoogland applied for a new position at the college.
The college`s policy was to require any current employee seeking a new
position within the college to complete a new application.
employment applications that Hoogland submitted and signed during her
employment contained the following disclaimer just above the signature
I agree that any action or suit against Delta College arising out of
my employment or termination of employment, including, but
not limited to, claims arising under State or Federal civil rights
statutes, must be brought within 180 days of the event giving rise
to the claims or be forever barred. I waive any limitation periods
to the contrary.
READ CAREFULLY BEFORE SIGNING
I agree that any claim or lawsuit relating to my service with
Delta College or any of its divisions must be filed no more than
six (6) months after the date of the employment action that is the
subject of the claim or lawsuit. I waive any statute of limitations
to the contrary.
Delta College did hire Hoogland for the new job she sought, an
'office professional equity/human resources¨ position, and in June 2007,
563. Hoogland v. Kubatzke, No. 307459, 2013 WL 331580 (Mich. Ct. App. Jan. 29,
564. Id. The underlying facts of this case are more fully set forth in an earlier suit filed
by the plaintiff under her maiden name in the Eastern District of Michigan. See Boensch
v. Delta College, No. 10120, 2011 WL 1233301 (E.D. Mich. Mar. 30, 2011). This article
thus relies on and cites to the Boensch decision for background facts relevant to the
Michigan Court of Appeals decision discussed in this article.
565. Boensch, 2011 WL 1233301, at *1-2.
566. Id. at *2.
2014] EMPLOYMENT AND LABOR LAW 1007
Hoogland signed a one-year employment contract.
In July 2008,
Hoogland signed another one-year employment contract, extending her
employment through June 2009.
In May or June 2008, Hoogland received a threatening email while at
work from a woman she had dated.
Hoogland shared the email with a
Delta College public safety officer, who started an investigation.
officer submitted a complaint to the Bay County Prosecutor and
requested a stalking warrant for the woman`s arrest.
officer`s supervisor later requested that the warrant be withdrawn
because he did not believe the officer had conducted a sufficiently
The warrant was withdrawn.
A supervisor from the college`s public safety office took over the
investigation and interviewed Hoogland about her complaint.
Hoogland alleged that, during the interview, the supervisor expressed
bias toward women and was unprofessional.
Hoogland filed a
complaint against the public safety supervisor with the college`s human
On July 22, 2008, Delta College informed
Hoogland that it had investigated her complaint against the officer but
did not believe that his actions constituted harassment.
In the meantime, the Bay County Prosecutor sought a warrant for
Hoogland`s arrest for an alleged violation of Michigan`s anti-
On July 14, 2008, Hoogland was arrested while at
This prompted Delta College to investigate Hoogland`s
computer use, and on August 5, 2008, Hoogland was suspended with pay
for excessive personal use of the college`s computers.
12, 2008, Hoogland was reassigned to a temporary position in the
financial aid department based on the college`s loss of confidence in her
regarding access to confidential information.
571. Boensch, 2011 WL 1233301, at *3.
577. Boensch, 2011 WL 1233301, at *3.
578. Id. at *4.
583. Boensch, 2011 WL 1233301, at *4.
1008 THE WAYNE LAW REVIEW [Vol. 59:951
On September 19, 2008, Hoogland grieved her suspension, her
transfer, and the results of the harassment investigation.
2008, the grievance was rejected by the president of the college.
On May 28, 2009, the cyberstalking charges against Hoogland were
dismissed because the anti-cyberstalking statute was unconstitutionally
Several days later, in June 2009, Delta College notified
Hoogland that it would not renew her employment contract.
On January 12, 2010, Hoogland filed a four-count federal lawsuit
against Delta College in the Eastern District of Michigan, alleging
violations of her Fourteenth Amendment rights to equal protection and
due process, breach of employment contract, and violation of the
Michigan Elliott-Larsen Civil Rights Act.
The college moved for summary judgment, arguing that Hoogland`s
claims were barred by the six-month statute of limitations contained in
her employment application.
The last alleged adverse employment
action experienced by Hoogland occurred on June 30, 2009, the day her
contract expired and was not renewed.
Because Hoogland`s suit was
not filed until January 12, 2010, the federal district court held that her
claims were untimely.
Several months after her federal suit was dismissed, Hoogland filed a
retaliation case under the Elliott-Larsen Civil Rights Act in Bay County
This time, however, the suit named as defendants
several managers and executives of Delta College, who Hoogland
alleged had constructively discharged her by retaliating against her for
filing discrimination and harassment complaints.
The defendants filed a motion for summary disposition in lieu of
answering the complaint, arguing again that Hoogland`s claim was time-
barred and also barred by res judicata and collateral estoppel.
586. Id. at *5.
588. Id. at *1.
589. Boensch, 2011 WL 1233301, at *1. Delta College also argued that it was immune
under the Eleventh Amendment. The district court disagreed, finding that Delta College
was a 'political subdivision¨ and not an 'arm¨ of the state. Id. at *6-10. Nonetheless, the
case was dismissed as untimely based on the six-month statute of limitations provision.
590. Id. at *10.
591. Id. at *12.
592. Hoogland v. Kubatzke, No. 307459, 2013 WL 331580, at *1 (Mich. Ct. App. Jan.
2014] EMPLOYMENT AND LABOR LAW 1009
circuit court judge agreed, holding that the shortened limitations period
barred Hoogland`s claims against the individual defendants.
reasoned that the contractual limitation language applied to any action
arising out of Hoogland`s employment, regardless of who was named as
The Michigan Court of Appeals examined the
contractual statute of limitations provision in the employment application
to determine whether it applied to actions filed against individual
managers and executives.
In doing so, the court of appeals strictly read
the contractual language.
The court first concluded that the limitations
provision clearly applied to Delta College: 'I agree that any action or suit
against Delta College arising out of my employment or termination of
employment . . . must be brought within 180 days . . . .¨
Hoogland`s employment application contained a second limitations
provision, however, stating that 'any claim or lawsuit relating to my
service with Delta College or any of its divisions must be filed no more
than six (6) months after the date of the [adverse] employment action.¨
The court first questioned whether the defendants even had standing
to assert the statute of limitations defense, given that they were not
parties to the employment contract.
The court also considered whether
the contractual language contained a promise for the benefit of third
parties because the individual defendants were not specifically named in
the limitations provision.
Under Michigan law,
Any person for whose benefit a promise is made by way of
contract, as hereinafter defined, has the same right to enforce
said promise that he would have had if the said promise had been
made directly to him as the promise.
(1) A promise shall be construed to have been made for the
benefit of a person whenever the promisor of said promise had
596. Id. The res judicata and collateral estoppel arguments raised by the defendants
were deemed moot and not considered by the court. Id.
597. Hoogland, 2013 WL 331580, at *1.
601. Id. at *2.
603. Hoogland, 2013 WL 331580, at *2.
1010 THE WAYNE LAW REVIEW [Vol. 59:951
undertaken to give or to do or refrain from doing something
directly to or for said person.
The Hoogland court looked to Shay v. Aldrich
and White v. Taylor
for guidance on when a third party may assert
In Shay, the Michigan Supreme Court generally
held that if the language at issue broadly releases 'all other persons¨
from liability, a nonparty to a contract can qualify as a third-party
In White, the defendant contended that the language
stating, 'IT IS expressly agreed that this Release also refers to any and
all (past, present and future) claims/benefits arising or that may arise
from the March 15, 2004 accident¨ applied to any potential defendant
and not just the specific categories of individuals listed elsewhere in the
The White court rejected that argument, holding that there was
a difference between who was being released and what was being
As such, the broad release of all claims clarified only the
absolute immunity to which the defined class of individuals was
entitledit did not expand the class of individuals protected under the
Applying Shay and White, the court in Hoogland concluded that the
clear and unambiguous language in the employment application referred
only to Delta College.
No other class of persons was defined or listed
in the limitations provision.
Furthermore, consistent with White, the
language referring to 'any claim or lawsuit¨ in the second paragraph of
the limitations provision only clarified the scope of protection available
to the defined class, i.e., Delta College.
As in White, the appellate
court believed that the lower court had confused 'who¨ was protected by
604. MICH. COMP. LAWS ANN. § 600.1405(1) (West 2013).
605. Shay v. Aldrich, 487 Mich. 648; 790 N.W.2d 629 (2010).
606. White v. Taylor Distrib. Co., 289 Mich. App. 731; 798 N.W.2d 354 (2010).
607. Both Shay and White addressed the scope of a contractual release of liability
rather than the scope of a contractual statute of limitations period. However, as the court
of appeals observed, the principles are the same when analyzing either provision.
Hoogland, 2013 WL 331580, at *2 n.2.
608. Shay, 487 Mich. at 665.
609. White, 289 Mich. App. at 736.
612. Hoogland, 2013 WL 331580, at *2.
2014] EMPLOYMENT AND LABOR LAW 1011
the contractual language with 'what¨ was protected.
case was remanded to the trial court for further proceedings.
Based on the court`s interpretation of the contract language and case
law, it may well be that if Delta College had included specific classes of
individuals in its limitations language or had clearly defined who 'Delta
College¨ was, the managers and executives would have been protected
by the shortened limitations period.
The provision at issue was not so
specific, and so it was unenforceable as to those individual defendants.
VI. FAMILY AND MEDICAL LEAVE ACT
Under the Family and Medical Leave Act of 1993 (FMLA),
employee is eligible for leave only if the employee has worked for an
employer for a minimum of twelve months and worked at least 1,250
hours during the twelve months preceding the leave request.
employee must also work at a location at which the company employs
fifty or more employees within seventy-five miles.
whether an employer employs at least fifty workers at a worksite, only
actual employees are considered.
During the 2011-2012 Survey period, the Eastern District of
Michigan examined whether volunteer firefighters were employees for
purposes of FMLA eligibility in Mendel v. City of Gibraltar.
Applying traditional tests used in deciding 'whether the totality of
circumstances suggests an employer-employee relationship,¨
Iocusing particularly on an 'examination oI control and
615. Id. The court of appeals also rejected the defendants` argument that the lawsuit
was barred by res judicata and collateral estoppel, reasoning that the federal court did not
decide the claims of discrimination against the individuals, only the statute of limitations
issue with respect to Delta College. The court also observed that the defendants named in
the state court action were not mandatory parties to the first federal court action. Id. at *3-
616. Id. at *4.
617. Hoogland, 2013 WL 331580, at *4.
619. 29 U.S.C.A. §§ 2601-2654 (West 2013).
620. Id. § 2611(2)(A)(i)-(ii).
622. Id. § 2612(1) (West 2009).
623. Mendel v. City of Gibraltar, 842 F. Supp. 2d 1035 (E.D. Mich. 2012) (citing 29
U.S.C. §§ 2601-2654). For a more detailed discussion of this decision, see Nemeth &
Brouwer, supra note 94, at 719-722.
624. Mendel, 842 F. Supp. 2d at 1040-41. The court noted that four such tests are
typically used: '(1) common law agency . . . , (2) primary purpose . . . , (3) economic
reality . . . , and (4) a hybrid of common law and economic reality.¨ Id.
1012 THE WAYNE LAW REVIEW [Vol. 59:951
the district court concluded that the volunteer
firefighters in question were not employees, because the City exerted no
control over them.
According to the district court, it was significant
that the firefighters were not required to respond to fire calls, were not
subject to disciplinary actions when they did not respond to a call, and
were not required to work a set schedule or staff the fire station during
The lower court also determined that the $15 per hour paid
to firefighters, while not nominal, outweighed the lack of control
exercised by the City because it did not take into account the testing,
training, and certification time expected of the volunteers, all of which
During this Survey period, however, the Sixth Circuit Court of
Appeals reversed the district court in Mendel, holding that the volunteer
firefighters were city employees and should be included in the
calculation of the number of employees needed to render the plaintiff an
eligible employee under the FMLA.
Paul Mendel was a dispatcher for the City of Gibraltar Police
The City had forty-one regular employees.
It also relied
on volunteer firefighters but did not consider them employees.
volunteers were paid $15 per hour for responding to calls and
They did not receive health insurance,
vacation or sick time, social security benefits, or premium pay.
firefighters were required to attend mandatory trainings and take tests on
their own time without compensation.
The firefighters were not
required, however, to respond to calls, nor did they work scheduled shifts
or staff a fire station.
The firefighters did receive a Form-1099 MISC
from the City.
The City terminated Mendel from his dispatch position after he did
not report to work for five scheduled shifts.
According to the City,
Mendel failed to provide sufficient medical documentation explaining his
627. Id. at 1042.
628. Id. at 1043.
629. Mendel v. City of Gibraltar, 727 F.3d 565, 570 (6th Cir. 2013).
630. Mendel, 842 F. Supp. 2d at 1035.
631. Id. at 1036.
634. Id. at 1037.
636. Mendel, 842 F. Supp. 2d at 1037.
637. Mendel, 727 F.3d at 567.
645. Mendel, 842 F. Supp. 2d at 1036.
2014] EMPLOYMENT AND LABOR LAW 1013
Mendel filed suit, alleging that the City had violated the
FMLA by failing to designate his absences as FMLA leave, under which
he would have been protected from termination.
The City sought to dismiss Mendel`s claim, arguing that he was not
an eligible employee under the FMLA because the City employed fewer
than fifty workers within seventy-five miles of Mendel`s worksite.
The district court granted the City`s motion and dismissed Mendel`s
Mendel appealed, and the court of appeals reversed.
The issue as
identified by the appellate court was 'whether reputedly volunteer`
firefighters fall within the scope of the FMLA`s definition of an
In reaching its decision, the court first reviewed the
definition of 'employee¨ under the Fair Labor Standards Act (FLSA)
because the FMLA incorporates that definition by reference.
FLSA defines 'employee¨ as 'any individual employed by an
and defines 'employ¨ as 'to suffer or permit to work.¨
Finding these definitions to be of limited assistance, the court turned to
U.S. Supreme Court decisions stating that, under the FLSA, common law
categories of employees and employment relationships are not
More instructive, according to the Supreme Court, is
the economic reality test,
which, on a case-by-case basis, views the
entire business relationship to assess whether an employment
Based on the fact that the City did suffer or permit
the firefighters to work and paid them 'substantial wages¨ for that work,
641. Id. at 1036 (citing 29 U.S.C. §§ 2601-2654).
642. Id. at 1043-44.
643. Mendel, 727 F.3d at 567.
644. Id. at 569.
645. Id. (citing 29 U.S.C. § 2611(3)).
646. 29 U.S.C.A. § 203(e)(1) (West 2006).
647. Id. § 203(g).
648. Mendel, 727 F.3d at 569 (quoting Walling v. Portland Terminal Co., 330 U.S.
148, 150-51 (1947)).
649. The economic reality test looks at a variety of factors, including
1) the permanency of the relationship between the parties; 2) the degree of skill
required for the rendering of the services; 3) the worker`s investment in
equipment or materials for the task; 4) the worker`s opportunity for profit or
loss, depending upon his skill; and 5) the degree of the alleged employer`s right
to control the manner in which the work is performed[;] . . . [and 6) 'whether
the service rendered is an integral part of the alleged employer`s business.¨|
Donovan v. Brandel, 736 F.2d 1114, 1117-20, 1117 n.5 (6th Cir. 1984).
650. Mendel, 727 F.3d at 569-70 (citing Tony & Susan Alamo Found. v. Sec`y of
Labor, 471 U.S. 290, 301 (1985), and Donovan, 736 F.2d at 1116).
1014 THE WAYNE LAW REVIEW [Vol. 59:951
the court of appeals determined that they were indeed employees under
the FLSA`s broad definitionsubject to an analysis of the applicability
of a 1986 amendment to the FLSA exempting volunteers performing
work for a public agency.
That amendment excludes from the FLSA`s definition of employee
any individual who volunteers for a public agency if 'the individual
receives no compensation or is paid [only] expenses, reasonable benefits,
or a nominal fee to perform [the volunteer] services`¨ and is not
otherwise employed by the agency to perform those same types of
Critical to the court was whether the firefighters received
compensation or merely a 'nominal fee.¨
Also critical to the court`s
analysis were U.S. Department of Labor regulations defining a volunteer
as one performing hours of service 'without promise, expectation or
receipt of compensation for services rendered`¨
and stating that
'volunteers may be paid expenses, reasonable benefits, a nominal fee or
any combination thereof, for their service without losing their status as
The regulation continues: 'Whether the furnishing of
expenses, benefits, or fees would result in individuals` losing their status
as volunteers under the FLSA can only be determined by examining the
total amount of payments made . . . in the context of the economic
realities of the particular situation.`¨
Applying these regulations, the court held that the hourly wage paid
to the firefighters was not nominal but instead was compensation, at least
in part because the monies were paid on an hourly basis and not merely
Further, the hourly rate paid was similar to the rates paid in
neighboring communities to full-time employees working as
According to the Sixth Circuit, the Gibraltar firefighters
were paid a regular hourly wage for whatever time they chose to work
and thus worked 'in contemplation of compensation,¨ removing them
from the definition of volunteers under the regulations.
As such, the firefighters were included as city employees for
purposes of the FMLA, and Mendel was therefore an eligible employee
under that Act.
In reaching that result, the court recognized that the
651. Id. at 570.
652. Id. (quoting 29 U.S.C. § 203(e)(4)(A)(i)(ii)).
653. Id. at 570.
654. Id. (quoting 29 C.F.R. § 553.101(a)).
655. Id. (quoting 29 C.F.R. § 553.106(a)).
656. Mendel, 727 F.2d at 570-71 (quoting 29 C.F.R. § 553.106(f)).
657. Id. at 571.
660. Id. at 572.
2014] EMPLOYMENT AND LABOR LAW 1015
FLSA`s definitions of 'employee¨ and 'volunteer¨ were not the same as
those terms` popular usage, resulting in a decision that the court itself
described as 'counterintuitive¨ but nonetheless based on the applicable
law and facts.
In dissent, Judge Raymond Kethledge stated that, in his view, the
firefighters were not employees that the City 'suffered¨ or 'permitted¨ to
work because the City exercised virtually no control over the firefighter`s
Further, Judge Kethledge disagreed with the majority`s
conclusion that the $15 per hour paid to the firefighters was substantial
because it was only paid for time fighting fires and not for training time
and also because of the importance of the service provided.
A. Certification of Leave
The FMLA entitles eligible employees who work for covered
employers to take unpaid, job-protected leave for specified family and
Under the FMLA regulations issued by the U.S.
Department of Labor to enforce the Act, within five days of receiving a
leave request, an employer has the right to request and obtain complete
and sufficient medical certification to support an absence due to an
employee`s alleged serious health condition.
The employee then must
provide the requested certification within fifteen calendar days, unless it
is not practicable to do so despite the employee`s diligent, good faith
An employee who could but does not provide the necessary
certification may lose her right to take FMLA leave and risk possible
The Sixth Circuit Court of Appeals addressed the consequences of an
employee`s failure to provide timely certification in Kinds v. Ohio Bell
Telephone Co., the first of several FMLA decisions involving Ohio Bell
decided during the Survey period.
The court concluded that an
employer can request medical certification even after the requisite five-
business-days period if the employer suspects that the reason for an
employee`s leave may not be appropriate.
662. Mendel, 727 F.3d at 573.
663. Id. at 571.
664. See generally 29 U.S.C.A. §§ 2601-2654 (West 2013).
665. 29 C.F.R. §§ 825.300-.313 (2013).
666. 29 C.F.R. § 825.305(b) (2013).
667. 29 C.F.R. § 825.305(c) (2013).
668. Kinds v. Ohio Bell Tel. Co., 724 F.3d 648 (6th Cir. 2013).
669. Id. at 653-54.
1016 THE WAYNE LAW REVIEW [Vol. 59:951
On October 13, 2009, Debra Kinds requested FMLA leave from her
employer to deal with a mentally and physically abusive relationship
with her live-in boyfriend.
The leave was granted, and Kinds did not
work again until December 15, 2009, when she returned part-time.
week after Kinds went on leave, Ohio Bell initiated a claim for short-
term disability benefits on Kinds` behalf with its insurance administrator,
Sedgwick Claims Management Services.
Also around this time, the
FMLA management company used by Ohio Bell informed Kinds that the
FMLA would only apply if the request for short-term disability was
denied, and so medical certification was not needed at that time.
On November 24, 2009, Sedgwick approved Kinds` short-term
disability benefits for the period of November 10, 2009 through
December 14, 2009.
Benefits were denied for the period of October
20, 2009 through November 9, 2009 because Kinds was not disabled
during that period based on her medical records.
When Kinds returned
to full-time work on December 29, 2009, she was asked to submit FMLA
medical certification by January 13, 2010 addressing the October 20
through November 9 period for which she had been denied short-term
Kinds did not provide the required medical
certification in a timely manner.
Ohio Bell then discharged Kinds on
March 30, 2010 because, without the medical certification, Kinds`
absences from October 20 to November 9, 2009 were unexcused, placing
Kinds in violation of the company`s attendance policy.
Kinds filed suit, alleging that Ohio Bell had interfered with her
FMLA rights by failing to timely request the medical certification.
The district court granted Ohio Bell`s motion for summary judgment and
dismissed the case.
The Sixth Circuit affirmed based on Kinds` failure to timely submit
medical justification for her requested FMLA leave.
The court rejected
Kinds` argument that Ohio Bell did not comply with the applicable
670. Id. at 650.
674. Kinds, 724 F.3d at 650.
676. Id. at 651.
679. Id. at 652.
680. Kinds, 724 F.3d at 651-52.
681. Id. at 649.
682. Id. at 654.
2014] EMPLOYMENT AND LABOR LAW 1017
FMLA regulation governing the timing of medical certification requests,
In most cases, the employer should request that an employee
furnish certification at the time the employee gives notice of the
need for leave or within five business days thereafter, or, in the
case of unforeseen leave, within five business days after the
leave commences. The employer may request certification at
some later date if the employer later has reason to question the
appropriateness of the leave or its duration.
Kinds contended that this regulation requires an employer to request
medical certification within five business days after receiving notice of
the need for leave or else forever forfeit the right to request a
Kinds further argued that the exception to the regulation
allowing a later request for certification 'if the employer later has reason
to question the appropriateness of the leave¨ is limited to those instances
when the employee is suspected of fraud.
The court rejected this
argument, however, because nothing in the regulation refers to employee
fraud as the only acceptable reason to request certification.
Ohio Bell did have 'reason to question the appropriateness of [Kinds`]
leave after Sedgwick denied short-term disability benefits for the full
period requested by Kinds.¨
Under the circumstances, it was
appropriate for Ohio Bell to wait until the disability insurance
administrator denied benefits before requesting additional medical
Thus, Ohio Bell`s December 29, 2009 request was timely
and triggered Kinds` obligation to provide the requested certification.
The FMLA also allows employers to request recertification of an
employee`s medical condition if the employee`s medical condition
The question then becomes how frequently an employer can
request recertification. The Sixth Circuit answered this question in Smith
v. City of Niles,
concluding that an employer can request recertification
683. Id. at 652-53 (citing 29 C.F.R. § 825.305(b) (2013)).
684. Id. at 653.
685. Id. (citing 29 C.F.R. § 825.305(b)).
686. Kinds, 724 F.3d at 653.
687. Id. at 654.
689. Id. 653-54.
690. 29 C.F.R. § 825.308(c)(2) (2013).
691. Smith v. City of Niles, 505 F. App`x 482 (6th Cir. 2012).
1018 THE WAYNE LAW REVIEW [Vol. 59:951
as often as warranted when there is a change in the employee`s medical
Leddrew Smith worked as an engineering assistant in the utilities
department of the City of Niles.
Smith suffered a back injury in a 2001
car accident that partially disabled him.
Following the accident, Smith
was unable to 'bend, lift more than thirty pounds or walk more than
Smith`s doctor told the City that Smith would have
one- to two-day intermittent episodes of incapacity for three to four
years, for which he required intermittent FMLA leave.
leave (blocks of time less than the full amount of FMLA leave
entitlement) is available under the Act when medically necessary or
when the leave is due to a qualifying exigency.
Beginning in 2002 and continuing until 2009, the City asked Smith
to provide six separate medical certifications.
After Smith`s job was
eliminated in 2010, he sued, alleging, among other things, that the City
had engaged in 'certification harassment¨ in violation of the FMLA by
demanding six separate medical recertifications over a period of several
The Sixth Circuit affirmed the district court`s grant of summary
disposition to the City, agreeing that the City`s recertification efforts
were justified based on the changed circumstances surrounding Smith`s
need for intermittent leave.
The court explained that, while an
employer may demand 'a recertification of a medical condition every
six months in connection with an absence by the employee,`¨ an
employer may also demand recertification within a shorter time, even as
few as thirty days, if '[c]ircumstances described by the previous
certification have changed significantly,`¨ including an 'increased
duration of absence.`¨
In Smith`s case, according to the court, two events justified the
City`s request for new certification: when Smith took six days of leave
692. Id. at 484-85.
693. Id. at 483.
697. 29 U.S.C.A. § 2612(b) (West 2013).
698. Smith, 505 F. App`x at 484. In 2010, the City decided to close its records
department, which consisted of Smith and another employee. Both jobs were eliminated
at the same time. Id. at 483.
699. Id. at 484-85.
701. Id. at 484 (alteration in original) (quoting 29 C.F.R. § 825.308(b), and 29 C.F.R. §
2014] EMPLOYMENT AND LABOR LAW 1019
instead of the two days the doctor had estimated in the earlier
certification and again when Smith sought a change in his working
conditions to accommodate a new physical limitation of 'no repetitive
bending or twisting at the waist.¨
According to the court, a request for
recertification was warranted because Smith`s new limitations were not
included on his previous certification'the epitome of a reasonable
The court also observed that 'an FMLA certification does not
provide a no-questions-asked pass for employees to take time off
whenever and for however long they wish,¨
and it concluded by
stating, '[Smith] is right about one thing: An unreasonable demand for
recertification may interfere with FMLA rights. He is wrong about
another: The city`s requests all fit comfortably within the regulatory
While Smith`s claim was unsuccessful, the court seemed
to leave the door open for another plaintiff, with different facts, to argue
that unreasonable certification requests violate the Act.
B. Fraudulent FMLA Use and the Honest Belief Defense
Under the Act, employers are prohibited from interfering with an
employee`s FMLA rights and from retaliating against employees who
invoke their rights under the Act.
FMLA regulations acknowledge,
however, that employees have no greater rights than they would have
without taking FMLA leave.
Further, employers are allowed to rely on
their 'honest belief¨ when making employment decisions regarding
The 'honest belief¨ rule applies when 'the
employer honestly believes, based on particularized facts, that an
employee lied and misused her FMLA leave and disciplines/terminates
such employee based on such belief.¨
During the Survey period,
numerous district and appellate courts in the Sixth Circuit examined
these issues in the context of FMLA fraud by employees. These cases
702. Id. at 484-85.
703. Smith, 505 F. App`x at 485.
704. Id. at 484-85.
705. Id. at 484.
706. See id. at 588.
707. 29 U.S.C.A. § 2615(a)(1)-(2) (West 1993).
708. 29 C.F.R. § 825.216(a) (2013).
709. Lineberry v. Richards, No. 11-13752, 2013 WL 4386989 (E.D. Mich. Feb. 5,
2013) (citing Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998), and Donald v.
Sybra, Inc., 667 F.3d 757 (6th Cir. 2012)).
710. Id. at *6.
1020 THE WAYNE LAW REVIEW [Vol. 59:951
resulted in several employer-friendly decisions reinforcing the 'honest
belief¨ rule as a valid defense for employers defending FMLA claims.
In Jaszczyszyn v. Advantage Health Physician Network,
upheld the employer`s termination of an employee observed engaging in
activities inconsistent with her FMLA leave.
Sara Jaszczyszyn was a
customer service representative for Advantage Health Physician Network
In July 2009, Jaszczyszyn began experiencing pain in her
lower back stemming from a car accident that occurred ten years
About a month later, Jaszczyszyn`s doctor concluded she was
'completely incapacitated¨ from work from August 31 through
September 7, 2009.
Because Jaszczyszyn did not have enough paid
time off to cover her absences, Advantage recommended that
Jaszczyszyn apply for FMLA leave and provided her with the necessary
paperwork, including a FMLA medical certification form for her doctor
On September 8, 2009, Jaszczyszyn returned to work as planned.
The next day, her doctor submitted a FMLA Certification of Health Care
Provider form to Advantage, indicating that Jaszczyszyn was having
about four flare-ups per month, lasting anywhere from a few hours to
days, and that she would be unable to perform all of her job duties during
Advantage approved the request for intermittent
Jaszczyszyn, however, appeared to have 'treated the
leave as continuous, open-ended, and effective immediately . . . [and]
never return[ed] . . . to work after September 9th.¨
Advantage had to
repeatedly remind Jaszczyszyn to contact her supervisor each day when
she was unable to work and to turn in the required paperwork.
Advantage began to treat Jaszczyszyn`s absences as approved
intermittent FMLA leave.
On September 22, 2009, Jaszczyszyn finally provided Advantage
with a note from her doctor certifying a 'projected length of disability¨
711. Jaszczyszyn v. Advantage Health Physician Network, 504 Fed. App`x 440 (6th
712. Id. at 450.
713. Id. at 441-42.
714. Id. at 442.
717. Jaszczyszyn, 504 Fed. App`x at 443.
2014] EMPLOYMENT AND LABOR LAW 1021
from September 10 through October 5, 2009.
On September 30, 2009,
the doctor provided another note extending Jaszczyszyn`s incapacity
from October 5 through October 26, 2009.
Three days after her doctor completed the second work release form
rendering her completely incapacitated until October 26, 2009,
Jaszczyszyn attended a local Polish heritage festival for eight hours.
Afterwards, she posted pictures on Facebook showing her at the festival.
During that same weekend, Jaszczyszyn left voicemail messages for her
supervisor, stating that she was in pain and could not come to work the
following Monday, October 5, 2009.
Jaszczyszyn`s supervisor and several of her co-workers, all of who
were Jaszczyszyn`s 'friends¨ on Facebook, saw the pictures of
Jaszczyszyn at the festival. Jaszczyszyn`s co-workers felt 'betrayed and
duped¨ by seeing Jaszczyszyn out partying while they were covering for
her at work.
In response, Advantage began a formal investigation, including a
meeting with Jaszczyszyn to discuss her leave.
During the meeting,
Advantage raised Jaszczyszyn`s communication issues, her requests for
additional leave, her job requirements, and the injuries that she claimed
had prevented her from fulfilling those requirements, and Advantage
confirmed that Jaszczyszyn knew that the company took fraud
Advantage also discussed the pictures of Jaszczyszyn at the
festival, which it believed were inconsistent with statements she had
made in support of her FMLA leave requests.
was unable to provide a reasonable explanation of the discrepancy
between her request for leave and her activity in the pictures, Advantage
terminated her employment at the end of the meeting.
Jaszczyszyn sued Advantage, claiming that she was discharged in
retaliation for taking FMLA leave or in interference with her right to take
The district court granted summary judgment to
Advantage, accepting its arguments that there was no evidence of
723. Jaszczyszyn, 504 Fed. App`x at 444.
729. Jaszczyszyn, 504 Fed. App`x at 445.
732. Id. at 446.
1022 THE WAYNE LAW REVIEW [Vol. 59:951
retaliatory motive and that it had an 'honest suspicion¨ that Jaszczyszyn
was abusing her leave.
The Sixth Circuit affirmed.
With respect to Jaszczyszyn`s FMLA
interference claim, relying on Donald v. Sybra, Inc.,
the court held that
the McDonnell Douglas burden-shifting analysis applied to FMLA
interference claims when the employer offers a legitimate reason for the
termination unrelated to the FMLA leave.
In addition, as in Donald,
the court declined to expressly apply the 'honest belief¨ rule to FMLA
Instead, the court relied on a later published
opinion, Seeger v. Cincinnati Bell Telephone Co.
In Seeger, the Sixth
Circuit found that the district court properly confined its analysis to an
FMLA retaliation theory, despite Seeger`s attempt to claim both
interference and retaliation claims, because Seeger received all of the
FMLA leave to which he was entitled.
Likewise, Jaszczyszyn argued that the basis for her interference
claim was Advantage`s failure to reinstate her.
never requested reinstatement after her first leave and instead submitted a
second request for leave.
As such, the court held that because
Advantage granted Jaszczyszyn all the leave to which she was entitled
and paid for all of her time off prior to her termination, Advantage did
not interfere with Jaszczyszyn`s FMLA rights.
Therefore, the court did
not need to consider the 'honest belief¨ rule.
In addressing Jaszczyszyn`s retaliation claim, the court held that she
had failed to establish a causal connection between her FMLA leave and
The court did address the 'honest belief¨ rule here,
finding that Advantage had an 'honest belief¨ that Jaszczyszyn had
engaged in fraud.
Its decision to terminate Jaszczyszyn following its
investigation because of her dishonesty, therefore, was a non-retaliatory
basis for Jaszczyszyn`s discharge.
The court noted further that
734. Id. at 450.
735. Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir. 2012)
736. McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973).
737. Jaszczyszyn, 504 F. App`x at 446-48.
738. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274 (6th Cir. 2012).
739. Id. at 283.
740. Jaszczyszyn, 504 F. App`x at 449.
743. Id at 450.
744. Id. at 44950.
746. Jaszczyszyn, 504 F. App`x at 450.
2014] EMPLOYMENT AND LABOR LAW 1023
Jaszczyszyn did not refute her employer`s honest belief that attending a
Polish festival was inconsistent with her claim of complete disability.
A similar result was reached in Hall v. Ohio Bell Telephone Co.,
which the Sixth Circuit held that the employer did not violate the FMLA
by investigating an employee`s suspicious use of FMLA leave.
Stella Hall worked as a customer service representative for Ohio Bell
from 2001 through 2010.
In August 2007, following a 'breakdown¨ on
the sales floor during work, Hall was diagnosed with anxiety disorder by
a licensed clinical social worker who certified that Hall needed 80 hours
of FMLA leave each month.
Ohio Bell approved the request, and Hall
began taking intermittent FMLA leave on September 8, 2007.
About a month into Hall`s leave, an article appeared in a local
newspaper describing how Hall had written and self-published two
In the article, Hall was quoted as saying that publishing a book
'takes hard work, perseverance, and determination. . . . How far will
you go? Meaning, are you ready to give up your Saturday or Friday or
take time off work to make your dream come true?`¨
Based on this
article and the timing of Hall`s leave requests, Ohio Bell suspected that
Hall might be abusing her FMLA leave; however, no investigation was
In 2008 and 2009, Hall used all of her FMLA leave (12 weeks, or
480 hours) by mid-year.
She maintained regular attendance during the
remainder of each year.
In January 2010, Hall reported absent due to
FMLA every Monday that she was scheduled to work.
This pattern of
absences again raised Ohio Bell`s suspicions and resulted in another
request for investigation into those absences.
748. Hall v. Ohio Bell Tel. Co., 529 F. App`x 434 (6th Cir. 2013).
749. Id. at 443-44.
750. Id. at 435.
754. Hall, 529 F. App`x at 435.
755. Id. at 436-37. Hall also took overlapping disability leave, and therefore, pursuant
to procedure, Ohio Bell`s Asset Protection Department directed Hall`s manager to
forward the request for investigation to the disability case manager for review. The
request for investigation was never forwarded, however, so no further action was taken.
756. Id. at 436
757. Id. In March 2009, Ohio Bell`s Asset Protection Department conducted an
investigation into Hall`s FMLA leave but terminated the investigation in August 2009
after finding no evidence of abuse. Id.
758. Hall, 529 F. App`x at 436.
759. Id. The second investigation into Hall`s FMLA was also inconclusive. Id.
1024 THE WAYNE LAW REVIEW [Vol. 59:951
In August 2010, Hall`s step-grandchild passed away.
informed Ohio Bell that her 'grandchild¨ had died and requested
Hall`s collective bargaining agreement allowed
employees to take such leave for the death of a biological grandchild.
Hall was approved for leave.
During the leave, however, she came to
work to pick up her paycheck and provided confusing text messages to
her supervisor regarding the details of the funeral servicebehavior her
supervisor found odd.
Ohio Bell again suspected that Hall might be
committing fraud and initiated yet another investigation.
investigation, Hall admitted that the deceased child`s mother was not her
Ohio Bell subsequently terminated Hall`s
employment for fraud.
Hall filed suit, alleging that her termination
occurred in retaliation for her FMLA activity.
The district court
granted summary judgment in favor of Ohio Bell, and Hall appealed.
On appeal, the Sixth Circuit emphasized Ohio Bell`s honest belief
that Hall had engaged in fraudulent conduct and therefore upheld
dismissal of Hall`s FMLA retaliation claim.
More specifically, the
court rejected Hall`s claim that Ohio Bell`s reason for termination was
pretext for FMLA retaliation.
The court held that Ohio Bell had
articulated particularized facts, along with contemporaneous records, in
support of its investigations into Hall`s several years of intermittent
The court also noted that Ohio Bell did not target Hall
for investigation merely because she took FMLA leave, but because it
had evidence that Hall might have abused FMLA leavethe interview
regarding her book publication and her pattern of FMLA absences.
In two other FMLA fraud cases decided during the Survey period,
Lineberry v. Richards
and Durden v. Ohio Bell Telephone Co.,
760. Id. at 437.
762. Id. at 437-38.
763. Hall, 529 F. App`x at 438.
764. Id. at 438.
766. Id. at 438-39.
767. Id. at 439.
768. Id. at 435.
769. Hall, 529 F. App`x at 436.
770. Id. at 443-44.
771. Id. at 440-41.
774. Lineberry v. Richards, No. 11-13752, 2013 WL 4386989 (E.D. Mich. Feb. 5,
2014] EMPLOYMENT AND LABOR LAW 1025
federal courts in Michigan and Ohio found for employers based on
employee misuse and abuse of FMLA.
In Lineberry, Judge Zatkoff of the Eastern District of Michigan
granted a motion for summary judgment in favor of Detroit Medical
Center (DMC) in a case arising from the FMLA claims of an employee
discharged for dishonesty and misuse of FMLA leave after posting
pictures of her vacation on Facebook while on medical leave.
Lineberry, a nurse at the DMC, was injured at work in January 2011
while moving stretchers. Lineberry`s doctor, a DMC employee,
concluded that Lineberry should not return to work, and DMC approved
FMLA leave for her from January 27, 2011 through April 27, 2011.
While on leave, Lineberry took a prepaid, planned vacation to
Mexico and, like Jaszczyszyn, posted pictures of her trip on Facebook.
Lineberry`s co-workers, who also were her Facebook 'friends,¨ saw the
pictures of Lineberry riding in a motorboat and lying on her side while
holding up two bottles of beer.
Lineberry also posted pictures in which
she was shown holding her grandchildren, taking trips to Home Depot,
'watching¨ her grandchildren, and taking online classes.
Lineberry`s co-workers reported the Facebook postings to
When the supervisor commented to Lineberry
about her vacation activities in an email, Lineberry responded that she
had used a wheelchair at the airports during her travel.
supervisor alerted DMC`s Loss Time Management Department of her
suspicions that Lineberry was misusing her leave.
returned to work on April 19, 2011, DMC interviewed her.
admitted that she had lied in her email to her supervisor about using a
wheelchair while on vacation.
DMC fired Lineberry for dishonesty and
for falsifying or omitting information related to her FMLA leave, a
violation of company policy.
Lineberry sued, alleging that DMC had
775. Durden v. Ohio Bell Tel. Co., No. 12-734, 2013 WL 1352620 (N.D. Ohio Apr. 2,
776. See generally Lineberry, 2013 WL 4386989.
777. Id. at *1.
782. Lineberry, 2013 WL 4386989, at *1-2.
783. Id. at *2.
786. Id. at *3.
1026 THE WAYNE LAW REVIEW [Vol. 59:951
interfered with her FMLA rights and retaliated against her for taking
In dismissing Lineberry`s claims, the district court noted that the
FMLA does not afford an employee greater rights than if she had not
taken FMLA leave, and therefore concluded that, based on Lineberry`s
undisputed dishonesty, DMC had the right to terminate Lineberry
regardless of her FMLA activity.
The court further held that DMC was
entitled to summary judgment under the 'honest belief¨ rule. The court
found that Lineberry`s activities, including her Facebook postings and
her lies about using a wheelchair, established the 'particularized facts¨
that supported DMC`s decision to terminate her employment.
In Durden, the final Ohio Bell case discussed in this FMLA Survey,
Judge Gaughan of the Northern District of Ohio emphasized the
importance of thoroughly investigating potential employee FMLA
Jacqueline Durden was a customer service representative in
Ohio Bell`s customer call center.
Throughout her employment with
Ohio Bell, Durden used intermittent FMLA leave based on a medical
certification allowing her to be absent for migraine headaches two to
three days per month.
Unknown to Ohio Bell, Durden`s wedding was scheduled for the
evening of July 14, 2011. On that day, Durden called in and requested a
vacation day. When she was told that she had no available vacation time,
Durden said she would take an FMLA day instead.
Durden`s July 14 FMLA leave, Ohio Bell requested a recertification
because Durden had been absent on intermittent leave more frequently
than indicated in her original certification.
Ohio Bell wanted to verify
that Durden was incapacitated from working on the days she had
previously taken off, including July 14, 2011.
Durden submitted the
requested recertification, and Ohio Bell approved her request for FMLA
leave for July 14, 2011.
787. Id. DMC filed a counter-complaint seeking to recover the amount of short-term
disability benefits it paid to Lineberry during her leave but agreed to dismiss this claim
when summary judgment was granted in order to bring an end to the litigation. Id. at *7.
788. Lineberry, 2013 WL 4386989, at *4-5.
789. Id. at *6-7.
790. See generally Durden v. Ohio Bell Tel. Co., No. 12-734, 2013 WL 1352620 (N.D.
Ohio Apr. 2, 2013).
791. Id. at *1.
792. Id. at *2.
796. Durden, 2013 WL 1352620, at *2.
2014] EMPLOYMENT AND LABOR LAW 1027
Several weeks later, Durden gave Ohio Bell a copy of her marriage
license to update her records with her married name.
Noticing that the
date on Durden`s license was the same day for which she had been
approved for FMLA leave, Ohio Bell began an investigation, which
confirmed that Durden had obtained a marriage license on July 14, 2011
and was married that evening.
The investigation also revealed that
Durden had asked a co-worker several months earlier to officiate her
wedding and that Durden had only requested FMLA leave after being
Ohio Bell thus concluded that Durden`s absence on
July 14, 2011 had been pre-planned and that Durden was not
incapacitated from work that day.
Durden was discharged.
In rejecting Durden`s FMLA claims, the district court concluded that
Ohio Bell had readily established that it terminated Durden based on its
honest belief that she fraudulently used FMLA leave because she
admitted to calling off sick and using FMLA leave on a day on which she
was well enough to obtain a marriage license and get married.
addition, Durden requested FMLA leave only after her request for a
vacation day was denied.
This was enough to show that Ohio Bell had
an honest belief that Durden abused her FMLA leave.
Finally, in Adams v. Auto Rail Logistics, Inc., the Sixth Circuit
expanded upon its position that taking FMLA leave does not protect an
employee from being terminated for other reasons.
In Adams, the court
confirmed that the 'same decision¨ defense remained viable in the Sixth
Under that defense, an employer can avoid liability with
evidence that it would have terminated an employee regardless of the
employee`s use of FMLA leave.
John Adams was employed by Auto Rail Logistics, Inc. as a rail
On December 26, 2007, Adams missed work in order to
798. Id. at *2-3.
800. Id. at *3.
802. Durden, 2013 WL 1352620, at *8. Durden also alleged discrimination based on
her race and religion under Ohio law, hostile work environment based on religious and
FMLA discrimination, and wrongful discharge in violation of Ohio public policy. All of
these claims were dismissed on Ohio Bell`s motion for summary judgment. Id. at *3, *14.
803. Id. at *8.
805. Adams v. Auto Rail Logistics, Inc., 504 F. App`x 453 (6th Cir. 2012).
806. Id. at 457.
807. Id. (citing Edgar v. JAC Prods., Inc., 443 F.3d 501 (6th Cir. 2006), and Arban v.
W. Publ`g Corp., 345 F.3d 390 (6th Cir. 2003)).
808. Id. at 454.
1028 THE WAYNE LAW REVIEW [Vol. 59:951
care for his ill daughter.
Adams later admitted that he did not need to
care for his daughter after December 26, 2007, but he still did not return
to work because, according to Adams, Auto Rail`s human resources
manager told him not to come back until he submitted medical
certification supporting his daughter`s condition.
Adams did provide that medical certification on January 8, 2008 and
was discharged in response.
Adams sued, alleging that under the
FMLA, he had fifteen days to provide Auto Rail with the requested
medical certification but was fired before those fifteen days had
A jury found that Auto Rail was not liable, because it proved
that it would have terminated Adams because of his misuse of FMLA
leave, even without considering his December 26 absence.
On appeal, the Sixth Circuit relied on previous decisions holding that
'an employer may lawfully dismiss an employee and prevent that
employee from exercising rights under the FMLA if the employer would
have dismissed the employee regardless of the employee`s taking of
and concluded that the district court`s 'same decision¨
jury instruction was proper.
The court further held that an employer that discharges an employee
for fraudulent use of leave is not required to prove fraud under state
It need only demonstrate an honest belief that the employee
misused the FMLA such that it would have discharged the employee
despite taking legitimate FMLA leave.
C. Sovereign Immunity
During the Survey period, in Diaz v. Michigan Department of
Corrections, the Sixth Circuit again addressed Eleventh Amendment
sovereign immunity as to FMLA claims.
In 2012, the U.S. Supreme
Court held, in Coleman v. Court of Appeals of Maryland,
sovereign immunity barred suit against a state for money damages under
810. Id. at 454-55.
811. Adams, 504 F. App`x at 455.
814. Id. at 457 (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006),
and Arban v. W. Publ`g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).
815. Id at 457-58.
817. Adams, 504 F. App`x at 457-58.
818. Diaz v. Mich. Dep`t oI Corr., 703 F.3d 956 (6th Cir. 2013).
819. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012).
2014] EMPLOYMENT AND LABOR LAW 1029
the self-care provision of the FMLA.
When reaching that decision, the
Supreme Court cited the Sixth Circuit decision of Touvell v. Ohio
Department of Mental Retardation & Developmental Disabilities,
which held that while a state employee may recover monetary damages
for her employer`s failure to comply with the family-care provisions of
under Nevada Department of Human Resources v. Hibbs,
that right did not extend to suits arising under the self-care provision of
The Supreme Court distinguished the FMLA`s family-care
provision from its self-care provisions by noting that the FMLA`s family
leave policies were grounded in concerns about the gender
discrimination inherent in many pre-FMLA family leave policies.
same concerns did not exist for the FMLA`s self-care provision.
In Diaz, the issue was whether an equitable FMLA claim, such as
one for reinstatement, was also barred by a state`s sovereign immunity.
Ricardo Diaz and Connie Boden sued their employers, the Michigan
Department of Corrections and Michigan Department of Human
Services, under 42 U.S.C. § 1983, alleging that they had been retaliated
against for exercising their FMLA rights to self-care leave.
court dismissed all claims.
The Sixth Circuit Court of Appeals affirmed dismissal of the claims
for monetary damages because the plaintiffs could not obtain such
damages against state officials under the self-care provision of the
The court noted that the plaintiffs could not circumvent
sovereign immunity by bringing § 1983 suits rather than FMLA
However, the court also held that the district court had erred in
dismissing Diaz`s reinstatement claim because the right to equitable
820. The portion of the FMLA that entitles employees to take up to twelve weeks of
unpaid leave for 'the employee`s own serious health condition that makes the employee
unable to perform the functions¨ of his employment is frequently referred to as the 'self-
care¨ provision under the FMLA. 29 U.S.C.A. § 2617(a)(1) (West 2013).
821. Touvell v. Ohio Dep`t oI Mental Retardation & Developmental Disabilities, 422
F.3d 392 (6th Cir. 2005).
822. The portion of the FMLA that entitles employees to take up to twelve weeks of
unpaid leave per year to care for a 'spouse, or a son, daughter, or parent¨ with a serious
health condition is commonly referred to as the 'family-care¨ provision of the FMLA. 29
U.S.C.A. § 2617(a)(1) (West 2013).
823. Nev. Dep`t oI Human Res. v. Hibbs, 538 U.S. 721 (2003).
824. Touvell, 422 F.3d at 400.
825. Hibbs, 538 U.S. at 721-22.
826. See generally Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012).
827. Diaz v. Mich. Dep`t oI Corr., 703 F.3d 956, 964-65 (6th Cir. 2013).
828. Id. at 958-60.
829. Id. at 958.
830. Id. at 962.
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relief for an FMLA violation by a public employer has not been deemed
The court observed that the holdings in Touvell and
Coleman were narrow and applied to claims for monetary damages under
the self-care provision of the FMLA, not to equitable claims.
remanded the case for the district court to determine whether Diaz had
sufficiently alleged an ongoing violation in order to maintain his
D. FMLA Retaliation
In an unpublished decision, the Sixth Circuit Court of Appeals
adopted for FMLA retaliation cases the standard endorsed by the U.S.
Supreme Court for Title VII claims in Burlington Northern v. White.
In Burlington, the Supreme Court held that to establish the adverse
employment action element of a prima facie case of retaliation, '[a]
plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.¨
The Supreme Court emphasized that this
was an objective standard, based on the view of a reasonable person in
the plaintiff`s position and not on the subjective desires or views of the
plaintiff, in order to 'screen out trivial conduct.¨
Whether this same standard applied to FMLA cases was an open
question until Crawford v. JP Morgan Chase & Co.
worked as a project manager for Chase Bank in Columbus, Ohio.
While working for Chase, Crawford also worked for Safe Auto Insurance
In March 2005, Crawford was held hostage at gunpoint by a
Safe Auto co-worker.
In January 2007, Crawford requested FMLA
leave from Chase for anxiety and depression associated with the Safe
Chase granted Crawford`s FMLA leave request, and
Crawford was off work until March 2007.
832. Id. at 964-65.
833. Diaz, 703 F.3d at 964-65.
834. Id. at 966.
835. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006).
837. Id. at 69-70.
838. Crawford v. JP Morgan Chase & Co., 531 F. App`x 622 (6th Cir. 2013).
839. Id. at 623.
843. Id. at 625.
2014] EMPLOYMENT AND LABOR LAW 1031
When Crawford returned to work in March 2007, she was assigned
to a different supervisor.
Crawford then took another FMLA leave
from December 2007 through February 2008.
A month later, in March
2008, Chase informed Crawford that her position had changed from
Project Manager I to Qualify Analyst II and that the project manager
position was moving to Phoenix.
Crawford thus was assigned to a
different position in Columbus, but her 'salary, grade level, work hours,
work location, and bonus potential did not change.¨
Crawford sued, alleging that upon her return from an approved
FMLA leave, she was not returned to the same position she had
previously held and that the change occurred in retaliation for the FMLA
The district court dismissed Crawford`s claims on Chase`s
motion for summary judgment.
Applying Burlington, the court of appeals noted that while
Crawford`s compensation remained the same, her new position involved
more clerical duties, did not require the same expertise, and required her
to report to someone who previously had been her peer.
these facts, the court concluded that the change in job responsibilities and
transfer to a lesser position could be viewed by a jury as an adverse
In his dissent, Circuit Judge Eric Clay disagreed, noting that the
majority had been 'too quick to accept Plaintiff`s assertion[s]¨ regarding
the alleged changes in her position.
Even if those assertions were taken
at face value, according to Judge Clay, the changes were 'the kinds of de
minimus, intangible, or unmeasurable parts of a job that specifically do
not give rise to a claim under the FMLA.¨
Judge Clay also rejected
Crawford`s retaliation claim because she was transferred to an equivalent
position and had always been granted the FMLA leave she requested,
eliminating the requisite causal connection.
844. Crawford, 531 F. App`x at 623.
845. Id. at 624.
848. Id. at 625.
850. Crawford, 531 F. App`x at 625.
851. Id. at 628.
853. Id. at 631 (Clay, J. dissenting).
854. Id. (citing Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 552 (E.D. Mich.
855. Id. at 632.
1032 THE WAYNE LAW REVIEW [Vol. 59:951
Despite its several forays into whistleblower disputes during this
Survey period, the Michigan Supreme Court is not quite finished. Still
pending before the court is whether federal labor laws preempt a WPA
claim brought against a union that discharged several of its business
agents, allegedly because the agents had reported illegal activities by the
In light of the proliferation of whistleblower and other
retaliation claims, that case is unlikely to be the supreme court`s last
word on the WPA. It is not unreasonable to expect continued litigation
over the parameters of protected activities and causation.
Still winding through the state and federal judicial systems are
challenges to Michigan`s 2012 right to work legislation, such as the suit
filed by unions representing state employees, which argues that only the
Civil Service Commission has the authority to regulate terms of
employment for classified civil service workers.
After losing at the
court of appeals, the unions sought and were granted leave to appeal to
the Michigan Supreme Court.
Pending in federal court is a challenge to
the law as preempted by the National Labor Relations Act filed by the
Decisions on these cases should consume a substantial
portion of next year`s Survey.
In the meantime, these are the takeaways from this Survey period:
disgruntled employees can maintain WPA suits based on whistleblowing
designed only to benefit the employee; an employee cannot testify at
deposition to events contradicted by other record evidence and expect
that testimony to be accepted as direct evidence of discrimination; even
volunteers can be employees; employers are still struggling to comply
with the FMLA and ADA; and employees on FMLA leave just need to
stop posting their vacation photos on Facebook.
856. See generally Henry v. Laborers Local 1191, Nos. 302373, 302710, 2012 WL
2579683 (Mich. Ct. App. July 3, 2012), appeal granted, 493 Mich. 934; 825 N.W.2d 578
857. See generally UAW v. Green, 302 Mich. App. 246; 839 N.W.2d 1 (2013).
858. UAW v. Green, 495 Mich. 921; 843 N.W.2d 742 (2014).
859. That case is Michigan State AFL-CIO v. Callaghan, Case No. 13-10557, assigned
to Judge Stephen Murphy of the Eastern District of Michigan.